This article considers two important themes connected with Charles Fried’s great work, “Contract as Promise”: first, the nature of the theoretical claims in that book; and second, the question of whether contract law, especially when this area is equated with the enforcement of promises, is in tension with John Stuart Mill’s “Harm Principle.”
While in the end I do not think that Fried’s book makes out its apparent ambition of a promissory theory of contract law (or of American contract law), this is largely because the book’s claims, when more carefully scrutinized, were never that ambitious to begin with. What “Contract as Promise” does is offer an important corrective for those who would disparage the role that the connected values of autonomy, will, consent, and promise, play in (American) contract law.
Regarding the implications of the Harm Principle for contract law, there are limits to which the prescriptive Harm Principle could be directly relevant to contract theory, as theories of contract law are best understood as descriptive, explanatory or interpretive. However, the Principle might justify the law’s approach to contract remedies. Additionally, the applicability of the Harm Principle is less clear when contract law is viewed from the lens of “Contract as Promise,” seeing contract enforcement (at its best) as a resource available to people to increase their liberty, allowing people to make a certain kind of commitment that would otherwise not be possible, rather than as a duty imposed upon them.
Bix, Brian, Theories of Contract Law and Enforcing Promissory Morality: Comments on Charles Fried (November 28, 2011). Suffolk Law Review, Forthcoming.