Contract as Promise Thirty Years On
Fried, Charles, Suffolk University Law Review
At the time Contract as Promise (1) was written, 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, (2) 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. This latter view saw contract law disappearing into tort law, which is quite frankly a means for adjusting--on grounds of perceived fairness, social utility or redistribution--relations between parties. The former was associated with an individualistic ethos friendly to capitalism and free markets, the latter with a more socializing, communitarian ethos. The signal works of this latter movement were Grant Gilmore's The Death of Contract (3) and Patrick Atiyah's The Rise and Fall of Freedom of Contract (4) Atiyah nicely captured the time's anti-individualist and anti-capitalist tone:
Promise-based liability rests upon a belief in the traditional liberal values of free choice. Many still admire these values but they bring with them, inescapably, many other consequences which are today less admired, especially in England. They bring, in particular, the recognition that some individuals are better equipped to exercise free choice than others, through natural aptitude, education, or the possession of wealth. And the greater is the scope for the exercise of free choice, the stronger is the tendency for these original inequalities to perpetuate themselves by maintaining or even increasing economic inequalities. (5)
Atiyah is particularly concerned to associate with these, he thinks, increasingly obsolete values of promise-based contractual liability, the enforcement of purely executory contracts and a damage regime measured by the expectation that such contracts generate. To this purely promissory and forward-looking ground for contractual obligation, he contrasts the 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 indeed the thesis of Gilmore's book.
The socializing thrust of this critique of contract law was also associated with the legal realist movement, which had a long history in American law, and its post-1960s, often frankly Marxist-tinged avatar, the critical legal studies movement. The critical legal studies movement disputed, indeed mocked, the pretensions of standard contract doctrine to provide a neutral framework for discerning and implementing the terms of agreements freely arrived at. The analysis not only delighted in showing that these supposedly neutral doctrines were often contradictory and incoherent but also that the real energy behind contract adjudication--as elsewhere in the law--were social forces implementing social agendas. What those agendas were depended on the interests of those in power and those whom they represented or with whom they made common cause. The signal work in this genre was Duncan Kennedy's Form and Substance in Private Law Adjudication (6)
Against these intellectual and cultural themes, Contract as Promise sought to assert the coherence of standard contract doctrine as providing the structure by which actors could determine for themselves the terms of their interactions and cooperation--whether in commercial or in personal relations. The thesis was avowedly moralizing. it was based on a morality of autonomy, respect for persons and trust. …