Symposium—Contract as Promise at 30: The Future of Contract Theory
Charles Fried’s Contract as Promise is the first post-realist will theory of contract. It is post-realist in two senses. First, Fried has learned the lessons of the realist critique of Langdellian formalism. He does not attempt to deduce the entire law of contract from a single promise principle. The theory is attuned to the multiple purposes and principles, as well as the practical exigencies, that figure into contract law. In his discussion of Red Owl, for example, Fried writes that “contract as promise has a distinct but neither exclusive nor necessarily dominant place among legal and moral principles.” While Fried minimizes the conflict between those different principles and purposes—imagining established boundaries and diplomatic relations rather than competing armies and territorial dispute—his approach is mildly pluralist. Second, the book is post-realist in its implicit rejection of Holmes’s suggestion that scientific study of the law must “wash it with cynical acid.” Fried has also learned the lessons of Lon Fuller’s critique of the realists. While Fried disagrees with much in The Reliance Interest in Contract Damages, I think he is sympathetic to its complaint that “at a time when men stand in dread of being labeled ‘unrealistic’ . . . we have almost ceased to talk about reasons altogether.” Contract as Promise is an inquiry into the reasons for a law of contract—its justification. It attempts to provide a principled account of contract law. . .