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Philosophical Foundations of Contract Law$
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Gregory Klass, George Letsas, and Prince Saprai

Print publication date: 2014

Print ISBN-13: 9780198713012

Published to Oxford Scholarship Online: March 2015

DOI: 10.1093/acprof:oso/9780198713012.001.0001

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Contract Is Not Promise; Contract Is Consent

Contract Is Not Promise; Contract Is Consent

Chapter:
(p.42) 3 Contract Is Not Promise; Contract Is Consent
Source:
Philosophical Foundations of Contract Law
Author(s):

Randy E. Barnett

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198713012.003.0003

In the 1980s, Charles Fried was right to focus on what was missing from both the “death of contract” and “law and economics” approaches to contract law: the internal morality of contract. But he focused on the wrong morality. Rather than embodying the morality of promise keeping, the enforcement of contracts can best be explained and justified as a product of the parties’ consent to be legally bound. This chapter observes that, in Contract as Promise, Fried himself admits that the “promise principle” cannot explain or justify two features that are at the core of contract law: the objective theory of assent and the content of most “gap fillers” or default rules of contract law. After summarizing how consent to contract accounts for both of these features, the chapter explains that, whereas the morality of promise keeping is best considered within the realm of ethics or “private” morality, legally enforcing the consent of the parties is a requirement of justice or “public” morality.

Keywords:   contract, Fried, promise principle, morality, consent

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