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46 J. Legal Educ. 518 (1996)
The Death of Reliance

handle is hein.journals/jled46 and id is 528 raw text is: The Death of Reliance Randy E. Barnett The Rise and Fall of Reliance In his classic 1941 article, Consideration and Form, Lon L. Fuller offered the following definition of what he called private autonomy, which, along with the principles of reliance and unjust enrichment, constituted the sub- stantive basis of contractual enforcement. Among the basic conceptions of contract law, Fuller wrote, the most pervasive and indispensable is the principle of private autonomy. This principle simply means that the lawviews private individuals as possessing a power to effect, within certain limits, changes in their legal relations. The man who conveys property to another is exercising this power; so is the man who enters a contract. When a court enforces a promise it is merely arming with a legal sanction a rule or ex previously established by the party himself. This power of the individual to effect changes in his legal relations with others is comparable to the power of a legislature. It is, in fact, only a kind of political prejudice which causes us to use the word law in one case and not in the other, a prejudice which did not deter the Romans from applying the word Lex to the norms established by private agreement.' In the 1950s, 1960s, and 1970s this view of contracts went into a steep decline. By the time I took Contracts in the mid-1970s, it was an article of faith that contract was not properly conceived as a means by which persons could, by their own choice, make law for themselves to govern their relations. Instead, contract was thought best conceived as the rectification of injuries persons may have caused by their verbal conduct in much the same way that persons have a duty to rectify the injuries caused by their physical acts. With contracts, these injuries consisted of detrimental reliance on the words of another. So conceived, both contract and tort duties are imposed by law, and do not arise from the parties' consent. Thus contract law is conceptually indistinguishable from tort law. The doctrinal implications of this reliance-based conception of contract were twofold. First, since duties were imposed by law rather than being the product of the parties' consent, we need not concern ourselves with many of © 1997 Randy E. Barnett Randy E. Barnett is Austin B. Fletcher Professor of Law at Boston University. Permission to photocopy for classroom use is hereby granted. I wish to thank my colleague Mark Pettit and the participants in a faculty workshop held at the University of Denver College of Law for their helpful comments on an earlier draft. 1. 41 Colum. L. Rev. 799, 806-07 (1941). ,Journal of Legal Education, Volume 46, Number 4 (December 1996)

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