The Sacred and Profane Contracts Machine: The Complex Morality of Contract Law in Action

By Braucher, Jean | Suffolk University Law Review, Summer 2012 | Go to article overview

The Sacred and Profane Contracts Machine: The Complex Morality of Contract Law in Action


Braucher, Jean, Suffolk University Law Review


   When e're you make a promise    Consider well its importance    And when made    Engrave it upon your heart (1) 

I. INTRODUCTION

The central argument of this article is that the song sung by Brownies about the importance of keeping promises needs a second verse, one about forgiving others who have made promises to you. A forgiveness principle is conventional but under-articulated promissory morality, crucial to building sound relationships in business as well as other realms of social life. In his 1981 book Contract as Promise: A Theory of Contractual Obligation, Charles Fried begins with a Kantian exposition of why keeping promises is a moral thing to do. (2) Promise-keeping, in this view, is moral behavior because it vindicates the autonomy of the promisor and also respects the promisee's trust and confidence. (3) Fried sees promissory morality not as communitarian but as based on respect for individuals' ability to plan and define the good for themselves. (4) Reacting to ideas at the time that contract was being absorbed into tort, with obligations imposed by law based on duty, (5) Fried pushed back. For example, he stressed that the expectation interest is ordinarily the appropriate remedy for contract breach because that is what was promised. (6) Contract, for Fried, is not about the wrong of inducing reliance, but about the liberty to engage in private ordering. (7)

My purpose is not to evaluate how successful Fried was in his attempt to explain contract doctrine as primarily based upon autonomy, trust, and respect for persons, vindicated by enforcing promises. (8) Rather, we should applaud his lack of embarrassment about talking about law and morals in the same breath and see where that might take us today in the study of contractual relationships. in a forward-looking spirit, i want to suggest some projects to build on the legacy of Fried's focus on contractual morality. The first area of inquiry is whether there is any way to explain contract law in action--in its many varieties--in moral terms, Kantian or otherwise. (9) Fried is explicit that his concern is with common-law doctrine. He is a case-law man, not an empiricist, quantitative or qualitative, and he makes no pretense of examining the business of business. He does not delve into the mechanics of how businesses and individuals, sometimes aided by lawyers but often not, adjust their deals to preserve relationships and reputation to the greater glory of making money, keeping customers and suppliers happy, and spending as little as possible on law, which is not free. (10) Along the way, as will be discussed in Parts III and IV below, those doing deals are often guided by moral concerns, although not necessarily the same ones reflected in law on the books or Fried's theory. Contract law in action seems to involve recognition of a need for flexibility about adjustment, release, and forgiveness, operating in tension with promise-keeping, as an important part of promissory morality.

Fried lists Ian Macneil and Lawrence Friedman as among those who saw legal obligation enforced by the state as inevitably pursuing community concerns, thus presenting a challenge to his autonomy-based theory. (11) However, Fried does not engage with Macneil's ideas about relational rather than discrete contract being the paradigm in practice, largely regulated by nonlegal norms and sanctions. (12) Nor does Fried answer Friedman's criticism of a focus on common-law doctrine as opposed to the making and adjustment of deals in the context of the modern regulatory state. (13) Fried does not even cite Stewart Macaulay's Non-Contractual Relations in Business, published eighteen years before Fried's book. (14) Macaulay found that businesses often deliberately fail to plan completely, mostly do not use legal sanctions to deal with disappointment, and have norms that are different from legal norms, such as regarding canceling the order as something different from breach of contract and seeing the reliance interest as the appropriate remedy for doing so.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Sacred and Profane Contracts Machine: The Complex Morality of Contract Law in Action
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.