Contract as Promise [Paperback]

Charles Fried (Author)

Book Description

Publication Date: April 15, 1982 | ISBN-10: 0674169301 | ISBN-13: 978-0674169302

This book displays the underlying structure of a complex body of law and integrates that structure with moral principles.

Charles Fried grounds the basic legal institution of contract in the morality of promise, under which individuals incur obligations freely by invoking each other's trust. Contract law and the promise principle are contrasted to the socially imposed obligations of compensation, restitution, and sharing, which determine the other basic institutions of private law, and which come into control where the parties have not succeeded in invoking the promise principle--as in the case of mistake or impossibility. Professor Fried illustrates his argument with a wide range of concrete examples; and opposing views of contract law are discussed in detail, particularly in connection with the doctrines of good faith, duress, and unconscionability.

For law students and legal scholars, Contract as Promise offers a coherent survey of an important legal concept. For philosophers and social scientists, the book is a unique demonstration of the practical and detailed entailments of moral theory.

Editorial Reviews

Review

[A] readable and provocative book on the philosophical foundations of contract law...Fried's argument makes a powerful case for the view that the law of contracts has a recognizable and distinctive intellectual integrity of its own...Students will find Fried's unifying hypothesis a helpful aid. (Yale Law Review )

Fried calls into question some of the most deeply held assumptions of contract law [and] argues powerfully for a moral basis of contract...Fried's book offers a sensitive and subtle investigation, a richly suggestive vision of contract theory. The study and systematic critical discussion of such theory is of the first importance, for it is a question of nothing less than the relationship between law and morals. (New York Law Journal )

Charles Fried attempts to restate and defend a liberal theory of contract...In setting out to defend what is, albeit in modified form, the classical theory of contract, Professor Fried is conscious that he is confronting a considerable weight of modern contract scholarship...This Fried confronts or finesses with elegance, grace, and skill. (Harvard Law Review )

Charles Fried has written a very sensible, readable, and important book. To have someone argue for the importance of moral reasoning in contracts, or for that matter any common law subject, is refreshing. To have it done well is a real treat.
--Richard Epstein

Review

Charles Fried has written a very sensible, readable, and important book. To have someone argue for the importance of moral reasoning in contracts, or for that matter any common law subject, is refreshing. To have it done well is a real treat.
--Richard Epstein --This text refers to an out of print or unavailable edition of this title.

See all Editorial Reviews

Product Details

• Paperback: 174 pages
• Publisher: Harvard University Press (April 15, 1982)
• Language: English
• ISBN-10: 0674169301
• ISBN-13: 978-0674169302
• Product Dimensions: 5.5 x 0.5 x 8.3 inches
• Shipping Weight: 4.8 ounces (View shipping rates and policies)
• Average Customer Review: 5.0 out of 5 stars  See all reviews (2 customer reviews)
• Amazon Best Sellers Rank: #932,114 in Books (See Top 100 in Books)

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Most Helpful Customer Reviews

11 of 11 people found the following review helpful

5.0 out of 5 stars The moral foundations of contract law May 16, 2001

By John S. Ryan

Format:Paperback

In this excellent treatise, Harvard Law professor Charles Fried argues that the law of contract is founded on a few simple moral principles governing the practice of promise-making and promise-keeping. Dealing by turns with the formation of contracts, the importance of "consideration," the appropriateness of damages in case of breach, the problems of e.g. duress and unconscionability (and the special difficulties they pose for his account), and a variety of other topics that will be familiar to legal scholars and law students alike, Fried briefly, economically, and effectively rationalizes contract law on this unabashedly moral foundation.

In this he is going against the tide and harking back to the "classical" understanding of contract law. But he is not uncritical of that tradition and is quite willing to lambaste it when necessary -- as with, for example, the traditional unwillingness to award damages for certain cases of fraud on the misguided argument that no contract had actually been formed in such cases. (On this point he holds -- in my view quite rightly -- that traditional thinkers were "supremely guilty" of a tremendous nonsequitur.)

On the contrary, he is keenly aware both that contract law is a bulwark of liberty in allowing us to order our own affairs, _and_ that contractual obligations are not the only obligations there are -- indeed that contractual obligation itself cannot get off the ground unless we have a prior, unchosen moral obligation to abide by our promises. In this respect he is a breath of fresh air compared with certain pseudo-libertarian writers and pop-culture icons who reduce all moral obligations to those voluntarily assumed by contract (and I am thinking here specifically of Ayn Rand, among others). Fried is both a true philosopher and a genuine liberal in the classical sense of the term.

I concur with the other reviewer's recommendation of this eminently readable little book to One-Ls. Fried is in general very powerful on the importance of philosophy to law, and here he is at his strongest in arguing for the importance of moral philosophy to contract law.

I also recommend it to the libertarian and classical-liberal readership as a fine example of real philosophy of law.

13 of 14 people found the following review helpful

5.0 out of 5 stars Should be Required Reading for First Year Law Students February 8, 2001

By Roger Severino

Format:Paperback

Professor Fried (former U.S. Solicitor General) is quite possibly the most erudite professor at Harvard Law School. His precision and exacting analysis shine through in his treatment of what some see as a dying academic field, the Law of Contracts. His perspective on the classic cases and extensive treatment of the major doctrinal elements of the subject is absolutely refreshing. Particularly, because his core premise is so intuitive--that it is morally wrong to break one's word and worse yet, to lie, therefore private contracts derive their legal force from essentially, what our parents taught us as children. If you are looking for a break from the typical law school fare or are just curious about what a different perspective looks like, you cannot go wrong with Professor Fried.

Also recommended for Law Students: Mary Ann Glendon - Rights Talk