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83 Notre Dame L. Rev. 353 (2007-2008)
Contract as Agreement

handle is hein.journals/tndl83 and id is 363 raw text is: CONTRACT AS AGREEMENT Lawrence M. Solan* A contract is an obligation attached by the mere force of law to certain acts of the parties, usually words, which ordinarily accom- pany and represent a known intent. If, however, it were proved by twenty bishops that either party, when he used the words, intended something else than the usual meaning which the law imposes upon them, he would still be held, unless there were some mutual mis- take, or something else of the sort. -Judge Learned Hand1 INTRODUCTION Broad theories of contract law are intentional in nature, whether based upon the rights of the individual as an autonomous actor,2 the benefits to society of encouraging people to engage in bargained-for transactions,3 or the justice due those who have relied on the promises and representations of others.4 No one speaks, for example, of the freedom to be bound by something one did not intend. Bar- © 2007 Lawrence M. Solan. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format, at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision and copyright notice. * Don Forchelli Professor of Law and Director, Center for the Study of Law, Language and Cognition, Associate Dean for Academic Affairs, Brooklyn Law School. Thanks to Ian Ayres, Neil Cohen, Sid DeLong, Chris Guzelian, Ted Janger, Charles Knapp, Russell Korobkin, Bailey Kuklin, Daniel Markovits, Barbara Hall Partee, Tony Sebok, and Peter Tiersma for valuable discussion, and to John Esmay, Heather Smith, and Joshua Urist (Brooklyn) and Sean Young (Yale) for their important contributions as research assistants. I have also benefited from valuable comments following presentations of this work at the University of Alabama School of Law, Seton Hall University School of Law, and at the Georgetown University Law Center Seminar on Law and Philosophy. This project was supported by the Summer Research Stipend Program of Brooklyn Law School. 1 Hotchkiss v. Nat'l City Bank of N.Y., 200 F. 287, 293 (S.D.N.Y. 1911). 2 See, e.g., CHARLES FRIED, CONTRACT AS PROMISE 2, 83-89 (1981). 3 See RESTATEMENT (SEcoND) OF CONTRACTS § 71 cmt. c (1981). 4 See L.L. Fuller & William R. Perdue, Jr., The Reliance Interest in Contract Damages: 1, 46 YALE L.J. 52, 53-57 (1936). The seminal work organizing contract law around

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