Contract is not promise; contract is consent.

• Author: Barnett, Randy E.
• Position: 'Contract as Promise' at 30: The Future of Contract Theory

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. Not only does Fried's account of contract doctrine still seem fresh and insightful, it turns out that in several respects, he anticipated "contract as consent." Indeed, I can imagine that, if one changed its opening thesis from "contract as promise" to "contract as consent," much of the subsequent thesis could remain more or less intact, albeit with some important modifications and improvements.

In particular, one of the less satisfying aspects of Contract as Promise, and the reason it left me rather cold when it first appeared, is how willing it appears so quickly to shift away from the promise model to account for myriad doctrines. True, it claims that this shift does not undermine the promise principle. But it also insists that the promise principle does not account for many of the doctrines that are needed to supplement it. One comes away from the book, or at least I came away from the book, thinking that Fried opts for alternative principles on a seemingly ad-hoc basis, or at least, that the promise principle on its own appears unable to justify much of what he thinks of as justified contracts doctrine.

In my view, "contract as consent" explains and justifies far more of contract law doctrine than does "contract as promise." And it avoids some of the problems created by viewing promises as the core of contractual obligation. But because consent and promise are so close to each other--and both ground contractual obligations in the voluntary choices of contracting parties--it is hard for some to distinguish these two alternative defenses of contractual freedom.

In these remarks, I will not be able to mount a comprehensive critique of either "contract as promise" or Contract as Promise. Instead, I want to briefly summarize some of the difficulties of this model and describe how it differs from "contract as consent." But I also want to do one more thing I had not expected to do when I accepted the invitation to participate in this symposium. I wish to highlight the degree to which Fried's defense of "contract as promise" actually relies on arguments that are better understood as aspects of "contract as consent." In this regard, his instincts moved him in the direction of consent, even when his theory was ostensibly limited to promise. And his defense of contractual freedom was, I think, as a result, more powerful than it otherwise would have been.

1. CONTRACT IS NOT PROMISE

   The thesis of Contract as Promise presents three major difficulties that undercut its claim to be either an explanation or justification of our law of contract. These concern: (1) its inability to explain contract law's objective theory of assent as contractual, (2) its inability to understand contract law's "gap fillers" as contractual, and (3) its moralizing the enforcement of contracts in the wrong way. In this Part, I consider each in turn.

   1. The Problem of the Objective Theory of Assent

      In my 1986 article, A Consent Theory of Contract, (5) I presented a critique of "will theories" of contract that can be taken as a critique of Fried's "contract as promise" thesis as well. In my later writings, I refer to the "will principle" rather than will "theories," (6) but I might just as well have called it the "promise principle" instead. According to the will or promise principle, commitments are enforceable because the promisor has "willed" or freely chosen to be bound by his commitment. Under the classical view, "the law of contract gives expression to and protects the will of the parties, for the will is something inherently worthy of respect." (7) In this approach, the use of force against a reneging promisor is morally justified because the promisor herself has undertaken the obligation in question. A promisor cannot complain about force being used against her, since she created the obligation being enforced. or, as Fried puts it: "An individual is morally bound to keep his promises because he has intentionally invoked a convention whose function it is to give grounds--moral grounds--for another to expect the promised performance." (8)

      In this way, the will (or promise) principle is able to distinguish contract law from tort law. In tort law, the source of the obligation or "duty" is the law. In contract, the source of the obligation or duty being enforced is the promisor herself. The spirit of the will principle may best be exemplified by the traditional sentiment, often expressed by nineteenth- and early-twentieth-century courts, that contracts require a "meeting of the minds." That mutual "assent" is thought necessary to create a contractual obligation is quite harmonious with the will principle.

      For its moral force, the promise principle depends upon the notion that contractual duties are binding because they are freely assumed by those who are required to discharge them. This position leads quite naturally to an inquiry as to the promisor's actual state of mind at the time of agreement--the so-called "subjective" viewpoint--and indeed most important contractual duties probably are subjectively assented to by the promisor. However, what of those manifested commitments lacking subjective assent? Without a genuine commitment by the person who is to be subjected to a legal sanction, enforcement would seem to be unjustified by the "will" of the promisee and, hence, it seems unsupported by the promise principle. After all, enforcement can hardly be based on either will or promise if the obligation was not chosen by the individual but instead was imposed by law the way that tort duties are.

      Yet, it has long been recognized that a system of contractual enforcement would be unworkable if it required a subjective inquiry into the putative promisor's intent. Where we cannot discern the actual subjective intent or will of the parties, there is no practical problem since we may assume it corresponds to objectively manifested intentions. But where subjective intent can somehow be proved, and is contrary to objectively manifested behavior, the...