Contract Is Not Promise; Contract Is Consent

By Barnett, Randy E. | Suffolk University Law Review, Summer 2012 | Go to article overview

Contract Is Not Promise; Contract Is Consent


Barnett, Randy E., Suffolk University Law Review


INTRODUCTION

Charles Fried's Contract as Promise (1) arrived on the scene in 1981 at exactly the right moment. In the 1970s, contract law scholarship had come to be dominated by two competing visions: the "contract as tort" vision associated with many scholars, but presented most pithily by Grant Gilmore in his highly influential The Death of Contract, (2) which appeared in 1974; and the "contract as efficiency" vision of law and economics scholars, especially the prolific and accessible Richard Posner in his book The Economic Analysis of Law, (3) the first edition of which was published in 1973.

Fried's "contract as promise" thesis was a welcome and much-needed defense of the traditional view of contract as protecting the "will" or choices of private parties. In his book, Fried defends what he calls "the promise principle," by which he meant "that principle by which persons may impose on themselves obligations where none existed before." (4) To make his case, Fried engaged in a tour de force march through the conundrums of contract doctrine, separating those doctrines that are best justified as consistent with the promise principle, those doctrines that could better be understood as resting on alternative justifications but are still consistent with the enforcement of voluntary transactions, and those doctrines that should be rejected because they are neither.

Perhaps due to Fried's systematic examination of the disparate contract law doctrines that so frustrate first-year law students, for a work of serious contracts scholarship, Contract as Promise has remained a remarkably popular book, even some thirty years after its appearance. And it also inspired a coterie of contracts scholars who, having taken contract law after its publication, have pursued and elaborated the "contract as promise" model.

By coincidence, in the fall of 1981, I began a one-year fellowship at the University of Chicago Law School, after having served four years as a criminal prosecutor for the Cook County State's Attorney's Office in Chicago. My research agenda was to retool as a contracts scholar, having been inspired to do so by taking Roberto Unger's contract class at Harvard Law School in 1974-1975, the only time he ever taught Contracts. In his course, Unger had effectively critiqued the "liberal" conception of contracts. We read, among other things, Gilmore's The Death of Contract, and Unger provided his own distinctive take on contract law. Later, I came to appreciate the extent to which Unger's critique of freedom of contract reflected that of Duncan Kennedy, who was then on the rise as a private-law legal theorist, but who taught Contracts in another section.

As a law student sympathetic to freedom of contract, I found myself unable to answer Unger's challenge, but at the same time unwilling to accept his critique, engaging as it was. Also unsatisfied was Unger's colleague (and my torts professor) Charles Fried. Fried's answer to Unger and others was Contract as Promise, but this answer, while a great step forward, did not fully satisfy me. With Fried's response in mind, I embarked on the writing that would lead to "a consent theory of contract," or what might be called "contract as consent."

I confess that I have not read Contract as Promise from cover to cover since my days at the University of Chicago. As a scholar, one has a tendency not to backtrack, which is why teaching is so valuable. It forces scholars to read, and reread, all the seminal cases and materials one might well never review. And that compels scholars to see these classic materials in a new light with each passing year. I accepted the invitation to participate in this symposium not only as an opportunity to pay homage to my professor Charles Fried, but as an inducement to revisit Contract as Promise to appreciate why it has endured so well for thirty years.

What I found upon my rereading was a book that exceeded my recollection of it. …

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