The Holmesian Bad Man Flubs His Entrance
Fried, Barbara H., Suffolk University Law Review
Thirty years after its publication, Contract as Promise remains the canonical presentation of a liberal, autonomy-based conception of contractual obligation. In Charles Fried's words, "The moral force behind contract as promise is autonomy: the parties are bound to their contract because they have chosen to be," and their "rights and duties [are] as far as possible a function of their own will and not of standards of justice external to that will." (1) While other strains of liberal contract theory (consent-based, obligation-based) may differ from Prof. Fried's "will" theory of contracts in other respects, they all share his foundational commitment to the view that promissory obligations, unlike most other forms of obligation, are voluntarily assumed. The same is true of most liberal, autonomy-based conceptions of promissory obligation in the moral realm. (2)
The question I wish to pursue here is this: Having established the voluntary nature of promissory obligation, has liberal contract theory (LCT) put itself out of a job? What further role, if any, does it have to play in elaborating the nature and content of promissory obligation?
It clearly has something to say about why promising to do X imposes obligations of some form on the promisor, where a mere expression of a future intention to do X would not. Indeed, of the enormous philosophical literature on promising, the overwhelming majority is addressed to just this question (or so my casual survey suggests). It presumably also has something to say about the preconditions for concluding that a promise was freely, rationally and deliberately--that is, voluntarily--made. This is no small subject, and implicates a host of issues concerning procedural fairness--duty to disclose, misrepresentation, economic duress, etc.--as well as mental capacity.
Finally, LCT does not itself require that the expressed wills of the parties always take precedence over other considerations. In extreme cases, liberal contract theorists could well conclude that those expressed desires should be trumped by paternalistic, public-policy, or fairness considerations. But all of these considerations are, in Prof. Fried's terms, "standards of justice external to that will," and hence not matters on which will theory itself can shed any light. (3)
The question is, does LCT have anything to say about the permissible content of X, beyond saying that parties may give X any content that they wish and courts should, as far as they are able, resolve any dispute between the parties in accordance with the parties' own intentions?
I think the answer is no. Rereading Contract as Promise in full thirty years after its publication, I was surprised to discover that for the most part (the other) Prof. Fried agrees. Much of the book is devoted to two lines of argument, both consistent with that conclusion.
The first line of argument repudiates, as inconsistent with the will theory of contracts, common-law doctrines that override the parties' clear intent. Prof. Fried's treatment of consideration is illustrative here. Acknowledging the irreducible contradiction between "the liberal principle that the free arrangements of rational persons should be respected" and the requirement, embedded in the doctrine of consideration, that in order to be respected those arrangements must include what the law recognizes as a "bargain," Prof. Fried concludes, in effect, so much the worse for the consideration doctrine: "Freedom of contract is freedom of promise, and...the intrusions of the standard doctrines of consideration can impose substantial if random restrictions on perfectly rational projects." (4)
Second, Fried argues that once we are unable to discern the parties' intent, will theory runs out, and any remaining gaps in the contract must be filled by resort to other (external) notions of justice. Prof. Fried's thoughtful treatment of the doctrines governing changed circumstances--mistake, frustration, impossibility, impracticability--is illustrative here. …