The Ambitions of Contract as Promise Thirty Years On ... - UCL

Ambitions of Contract As Promise 24 August 2012 discussion draft: do not quote or reproduce without permission
I.
Recently I had occasion to reconsider not just the validity of particular
arguments—for instance about consideration, the expectation measure of
damages, impossibility and frustration—I made over thirty years ago in Contract
as Promise, 1 but the value of the undertaking as a whole. 2 Contract as Promise
had as its overriding ambition connecting a number of salient doctrines of contract
law to—indeed deriving them from—a central organizing moral and doctrinal
principle: the promise principal. At the time in the late ’70s there were two views
of the subject in the field: a traditional, doctrinal and not particularly theorized
view that saw contract as the law’s way of allowing private parties to create
and enforce the terms that would govern transactions and long-term
undertakings, 3 and a burgeoning literature that saw contract law as a tool of
social control imposing obligations on parties growing in part, but only in part,
from dealings into which they had voluntarily entered. Of course, it was a
commonplace that society gains from the exchange of goods and services—not
only immediately as with barter, but over time as with the system of credit and the
1 CHARLES FRIED, CONTRACT AS PROMISE: A THEORY OF CONTRACTUAL OBLIGATION (1981).
2 The occasion was an academic conference, “Contract as Promise at 30: The Future of Contract Theory.” The
papers have been published in volume 45, no. 3 of the SUFFOLK UNIVERSITY LAW REVIEW (2012). This
essay has grown out of my contribution to that volume. Charles Fried, Contract as Promise Thirty Years On, 45
SUFFOLK U. L. REV. 961 (2012).
3 The Restatement (Second) of Contracts, section 1 defines a contract as a “promise or a set of promises
for the breach of which the law gives a remedy, or the performance of which the law in some way
recognizes as a duty.”
2