The Holmesian Bad Man Flubs His Entrance

20 Pages Posted: 11 Nov 2011 Last revised: 18 Oct 2012

Barbara H. Fried

Stanford Law School

Date Written: November 1, 2011

Abstract

In his 1980 Contract as Promise, Charles Fried famously argued that in the event one side fails to perform on the main subject of a contract, we should vindicate the moral bindingness of promises by giving the nonbreacher expectation damages. Over the years, other liberal contract theorists have argued just as strenuously for specific performance on the same grounds.

I argue here that both sides in this dispute are wrong. The right position for a will theorist or any other stripe of liberal contract theorist to take with respect to acceptable alternatives to performance is, in the first instance, no position at all - or more precisely, that each side should have whatever alternatives the parties agreed she should have. If liberal contract theorists ought to have no first-order moral preferences among possible alternatives to performance, what accounts for the almost universal view to the contrary? The short answer, I suggest, is blame it on Holmes.

Suggested Citation

Fried, Barbara H., The Holmesian Bad Man Flubs His Entrance (November 1, 2011). Symposium on Contract as Promise at Thirty Years, 45 Suffolk Law Rev. 637-64 (2012); Stanford Public Law Working Paper No. 1957835. Available at SSRN: https://ssrn.com/abstract=1957835

Barbara H. Fried (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Crown Quadrangle
Stanford, CA 94305-8610
United States
650-723-2499 (Phone)
650-725-0253 (Fax)

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