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45 Suffolk U. L. Rev. 647 (2011-2012)
Contracts is Not Promise; Contract is Consent

handle is hein.journals/sufflr45 and id is 655 raw text is: Contract Is Not Promise; Contract Is Consent Randy E. Bamett* ABSTRACT 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 intemal 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. INTRODUCTION Charles Fried's Contract as Promise' arrived on the scene in 1981 at exactly the right moment. In the 1970s, contract law scholarship had come to be dominated by two competing visions: the contract as tort vision associated with many scholars, but presented most pithily by Grant Gilmore in his highly influential The Death of Contract,2 which appeared in 1974; and the contract as efficiency vision of law and economics scholars, especially the prolific and accessible Richard Posner in his book The Economic Analysis of Law,3 the first edition of which was published in 1973. Fried's contract as promise thesis was a welcome and much-needed defense of the traditional view of contract as protecting the will or choices of private parties. In his book, Fried defends what he calls the promise * Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center. This essay was prepared for the symposium on Contract as Promise at 30: The Future of Contract Theory, held at the Suffolk University Law School on March 15, 2011. This article may be copied or distributed for classroom use. I thank Anastasia Killian for her research assistance. 1. CHARLES FRIED, CONTRACT AS PROMISE: A THEORY OF CONTRACTUAL OBLIGATION (1981). 2. GRANT GILMORE, THE DEATH OF CONTRACT (1974). 3. RICHARD A. POSNER, THE ECONOMIC ANALYSIS OF LAW (1973).

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