Symposium—Contract as Promise at 30: The Future of Contract Theory
Contract as Promise, Charles Fried’s modern classic, argues that contract law has a “moral basis” in the “promise principle.” It was written, of course, in response to scholars who foresaw the “Death of Contract.” 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. “Relationalists” downplayed the importance of specific agreements and formal legal rules, instead highlighting the enforcement of extra-legal interpersonal norms. Grant Gilmore combined these and other themes with a healthy dose of sarcasm, decrying the rules of classical contract law as barriers to justice. 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.” The fact that D harms P by breaking their deal rather than by breaking P’s nose is of no consequence. . .