Symposium—Contract as Promise at 30: The Future of Contract Theory
In the 1980s, Charles Fried was right to focus on what was missing from both the “death of contract” and “law and economics” approaches to contract law: the internal morality of contract. But he focused on the wrong morality. Rather than embodying the morality of promise-keeping, the enforcement of contracts can best be explained and justified as a product of the parties’ consent to be legally bound. In this essay, I observe that, in Contract as Promise, Fried himself admits that the “promise principle” cannot explain or justify two features that are at the core of contract law: the objective theory of assent and the content of most “gap fillers” or default rules of contract law. After summarizing how consent to contract accounts for both of these features, I explain that, whereas the morality of promise-keeping is best considered within the realm of ethics or “private” morality, legally enforcing the consent of the parties is a requirement of justice or “public” morality.