Do Promises Distinguish Contract from Tort?

Article excerpt

Contract as Promise, Charles Fried's modern classic, argues that contract law has a "moral basis" in the "promise principle." (1) It was written, of course, in response to scholars who foresaw the "Death of Contract." (2) According to them, it is a mistake to think of contract as a distinct domain of law, with a distinct foundation. Properly understood, contract is just an instantiation of the more basic category of tort, with the latter understood as law that requires persons who wrongfully cause losses to compensate their victims.

Contract-as-tort scholars made their point in different ways. Patrick Atiyah took a historical route, arguing that promising was only center stage in contract law for a brief period in the late-nineteenth and early-twentieth centuries, and has little to do with modern transactions. (3) "Relationalists" downplayed the importance of specific agreements and formal legal rules, instead highlighting the enforcement of extra-legal interpersonal norms. (4) Grant Gilmore combined these and other themes with a healthy dose of sarcasm, decrying the rules of classical contract law as barriers to justice. (5) Despite these differences, all subscribed to the idea that contract collapses into tort. As Fried put it so memorably, to these scholars, a breach of contract "is like a pit i have dug in the road, into which you fall. I have harmed you and should make you whole." (6) The fact that D harms P by breaking their deal rather than by breaking P's nose is of no consequence.

Against the contract-as-tort movement, Fried insisted that contract stands apart from tort because, unlike tort, it is built on promise. (7) He acknowledged that some courts had blurred the line between the two fields by, for example, mistakenly treating claims based on foreseeable detrimental reliance as contract claims. (8) But these decisions, he insisted, were mistakes at the margin that do not undermine the basic interpretive point that contractual obligations presuppose a promise in a way that tort duties do not. (9)

To emphasize the centrality of promise to contract was not enough, however, to fend off the contract-as-tort scholars. After all, they could concede that "contract" claims are claims for broken promises yet still insist that such claims fall within the larger category of tort. To deem harms caused by the failure to fulfill a promise as "breaches of contract" is no different--the argument would go--than assigning the name "battery" to intentional physical attacks or "slander" to spoken reputational attacks. A contract breach might be a distinctive kind of wrongful harming, but it is still a wrongful harming.

So Fried pushed further. Breaking a promise, he argued, is not merely one way of harming another. The utterance of a promise is not just an act akin to the deliberate movement of one's arm. it is a voluntary assumption of an obligation}10 To promise, under the right conditions, is to obligate oneself voluntarily to another. For Fried, it is the voluntary nature of promissory obligations that distinguishes contract from tort and other branches of private law. That promises stand at the root of contract also explains why contractual obligations are enforceable: "[S]ince a contract is first of all a promise, the contract must be kept because a promise must be kept." (11) The centrality of promise to contract in addition provides the key to understanding why contract law is, and should be, a pillar of our legal system. A liberal form of government does right by its citizens when it promotes individual choice. By enabling individuals credibly to commit themselves, contract law enables individuals to exercise their capacities as self-determining agents. (12)

We share Fried's judgment that contract is importantly distinct from tort. In what follows, however, we will begin with criticism. Specifically, we argue that the contract-as-promise thesis admits of two interpretations, that only one of these interpretations can generate a sharp distinction between tort and contract, and that Fried can only accept this interpretation at a significant cost to certain ambitions he has for his theory. …