Contract As Promise

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Summary: The moral foundations of contract law
Review: 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.


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Summary: Required Reading for ALL First Year Law Students ! ! ! !
Review: Professor Fried (former U.S. Solicitor General) is quite possibly the most erudite professor at Harvard Law School. His precision and exacting analysis shines through in his treatment of what some see as a dying academic field, the Law of Contracts (or a some now say, ConTorts). His perspective on the "classic" cases and extensive treatment of the major doctrinal elements is absolutely refreshing and surprisingly controversial. He has the audacity to state that the law actually does and should contain an overtly moral component!! In short, private contracts derive their legal force from essentially, what our parents taught us. That is, that it is morally wrong to break one's word and worse yet, to lie. This may sound absurdly obvious until you read the Legal Realist, Crit, deconstructionist, post-queer-chicano-marxist-feminist-theory, propaganda that currently DOMINATES legal teaching at America's the elite law schools (HLS being no exception, except of course, for professor Fried). If you are looking for a break from the relentless ideological indoctrination of law school, or are just curious about what a different perspective looks like, you cannot go wrong with Professor Fried.

Recommend for Law Students;* Mary Ann Glendon - Rights Talk * C.S. Lewis - The Abolition of Man * Peter Kreeft - The Unaborted Socrates (for a REAL example of the Socratic Method)