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Ambitions of Contract As Promise 24 August 2012 discussion draft: do not quote or reproduce without permission
the expectations that such contracts generate. To this purely promissory and
forward-looking ground for contractual obligation, he contrasts more
sympathetic, backward-looking grounds of liability based on the harm that a
disappointed promisee suffered when he acted in reliance on the promise, or
on the benefit that the disappointed promisee has conferred on the faithless
promisor. These grounds of liability would cause contract law to disappear into
the backward-looking grounds of tort and restitutionary liability, and that
absorption of contract into tort was just the thesis of Gilmore’s book. 12
The socializing thrust of Hale’s, Gilmore’s and Atiyah’s critiques of
contract law was also associated with the post-1960s and often Marxist-tinged
avatar of legal realism, the critical legal studies movement. The critical legal
theorists disputed, indeed mocked, the pretensions of standard contract doctrine
as providing a neutral framework for discerning and implementing the terms of
agreements freely arrived at. These scholars delighted in showing not only that
these supposedly neutral doctrines were often contradictory and incoherent, but
also that the real energy behind contract adjudication—as elsewhere in the law—
was provided by powerful forces implementing their social agendas. Those
agendas depended on the interests of those in power and those whom they
12 To the extent that the law of torts is more and more a law of insurance, it might be more apt to conclude that tort is
being progressively absorbed into contract. See generally CHARLES FRIED & DAVID ROSENBERG, MAKING
TORT LAW: WHAT SHOULD BE DONE AND WHO SHOULD DO (2003).
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