Charles Fried’s 1981 book, Contract as Promise, started the modern discussion in the United States and many other places on contract theory, and remains an influential view to which all contract theorists who have come later must respond. This Article will consider two important themes connected with Fried’s project: first, the nature of the theoretical claims in Contract as Promise; and second, the question of whether contract law, especially when this area is equated with the enforcement of promises, is in tension with John Stuart Mill’s “Harm Principle.”
Part I of this Article looks at Fried’s book from the perspective of theory construction, evaluating Fried’s claims in the context of the project of offering a theory of contract law. Part II looks at the way that Contract as Promise has become the center of a question about whether contract law “enforces morality” in an inappropriate way. . .