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Theories of Contract Law and Enforcing Promissory Morality: Comments on Charles Fried

Brian Bix

University of Minnesota Law School

November 28, 2011

Suffolk Law Review, Forthcoming
Minnesota Legal Studies Research Paper 11-47

This article considers two important themes connected with Charles Fried’s great work, "Contract as Promise": first, the nature of the theoretical claims in that book; and second, the question of whether contract law, especially when this area is equated with the enforcement of promises, is in tension with John Stuart Mill’s “Harm Principle.”

While in the end I do not think that Fried's book makes out its apparent ambition of a promissory theory of contract law (or of American contract law), this is largely because the book's claims, when more carefully scrutinized, were never that ambitious to begin with. What "Contract as Promise" does is offer an important corrective for those who would disparage the role that the connected values of autonomy, will, consent, and promise, play in (American) contract law.

Regarding the implications of the Harm Principle for contract law, there are limits to which the prescriptive Harm Principle could be directly relevant to contract theory, as theories of contract law are best understood as descriptive, explanatory or interpretive. However, the Principle might justify the law’s approach to contract remedies. Additionally, the applicability of the Harm Principle is less clear when contract law is viewed from the lens of "Contract as Promise," seeing contract enforcement (at its best) as a resource available to people to increase their liberty, allowing people to make a certain kind of commitment that would otherwise not be possible, rather than as a duty imposed upon them.

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Date posted: November 29, 2011 ; Last revised: December 3, 2011

Suggested Citation

Bix, Brian, Theories of Contract Law and Enforcing Promissory Morality: Comments on Charles Fried (November 28, 2011). Suffolk Law Review, Forthcoming; Minnesota Legal Studies Research Paper 11-47. Available at SSRN: https://ssrn.com/abstract=1965557

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Brian Bix (Contact Author)
University of Minnesota Law School ( email )
229 19th Avenue South
Minneapolis, MN 55455
United States
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