About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

120 Harv. L. Rev. F. 1 (2006-2007)

handle is hein.journals/forharoc120 and id is 1 raw text is: THE CONVERGENCE OF CONTRACT AND PROMISE Charles Fried* Responding to Seana Valentine Shiffrin, The Divergence of Contract and Promise, 120 HARV. L. REV. 708 (2007). I agree with the general tenor and many of the details of Professor Seana Shiffrin's lucid and closely reasoned account of the relation be- tween standard contract doctrine and the morality of promising. In this brief Response, I take up two points with which I disagree. First, Professor Shiffrin argues that contract doctrine, by making expectation damages rather than specific performance the general or default rem- edy for breach, diverges from what the morality of promising re- quires.' Second, she makes a similar argument about contract doc- trine's imposition of the burden of mitigating damages on the disappointed promisee.2 In respect to these two arguments she repeats what I think is a frequently made but mistaken argument in the eco- nomic literature on promising, which uses these very examples to claim that contract doctrine is not and should not be rooted in the mo- rality of promising, but rather in the economics of efficiency. Professor Shiffrin does not argue for that conclusion. Rather, she would move contract doctrine into closer alignment with what she considers to be the requirements of the morality of promising. I begin with a general account, one with which I do not suppose Professor Shiffrin would fundamentally disagree, of what I mean by morality and the morality of promising. Every society of any size and complexity, and certainly any such society that seeks the advantages of modernity - such as specialization of functions, accomplishment of time-extended tasks, provision for the future, and accumulation and transmission of knowledge - requires rules to guide the conduct of individuals and to specify the institutions and mechanisms by which those rules are identified, interpreted, enforced, and changed. I think Beneficial Professor of Law, Harvard Law School. This Response is an early step in a pro- ject to work out the relation of my argument in Contract as Promise: A Theory of Contractual Ob- ligation to the large economics literature on contract law that has developed since I wrote that book. Martin Kurzweil provided expert research assistance. I have benefited from Richard Craswell's guided tour through some of the economics literature and many conversations with Allen Ferrell. 1 See Seana Valentine Shiffrin, The Divergence of Contract and Promise, 120 HARv. L. REV 708, 722-24 (2007). 2 See id. at 724-26. 3 See id. at 712-13. I

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most