This post presents concise summaries of –
1) Charles Fried — “The Ambitions of Contract as Promise” (in Philosophical Foundations of Contract Law, ch. 2)
2) Randy E. Barnett — “A Consent Theory of Contract,” 86 Colum. L. Rev. 269 (1986)
1) Charles Fried — “The Ambitions of Contract as Promise” (in Philosophical Foundations of Contract Law, ch. 2)
Fried revisits his classic thesis that the promise principle supplies contract law’s animating morality: promising is a human “moral invention” by which free persons self-impose obligations to coordinate with others; it extends individual agency through reliable cooperation grounded in autonomy, trust, and respect for persons. Promissory obligation differs from duties not to harm because it is laid upon oneself, yet it draws sustenance from deeper moral soil that is truthfulness, trust, and respect; much as language enables specific moral wrongs like lying and goods like assurance. On this view, promising converts what was morally optional into non-optional because we will it to be so in pursuit of our ends.
He contrasts two conceptions in the twentieth-century debates:
(i) the traditional promissory model, which treats contract as a framework for parties to fix the terms of their cooperative ventures; and
(ii) an administrative/critical model, which assimilates contract to public allocation or tort, foregrounding coercion, redistribution, and judicial management.
Fried situates the critiques of Hale, Gilmore, and Atiyah and the CLS movement as pushing contract toward social control and away from private ordering, whereas his project seeks to vindicate contract’s coherence as the law of self-assumed duties and expectation remedies.
Responding to developments after Contract as Promise, Fried acknowledges the law-and-economics convergence with Kantian autonomy on many general rules and concedes he had underplayed topics like interpretation, good faith, frustration/impossibility, and unconscionability. He now treats many disputes as “contractual accidents” where complete specification is costly, so defaults and equitable allocation of risk are indispensable parts of contract doctrine. He also moderates on consideration and damages, accepting a more pragmatic account of expectation damages and party-designed remedial regimes, subject to some policing.
A central engagement is with Randy Barnett’s consent theory. Barnett argues that the law’s objective theory; enforcing the reasonable meaning of words even if the speaker meant otherwise—shows that consent, not promise, underwrites contract’s morality. Fried concedes the practical and moral reasons for holding people to the objective import of their words (including accident-like loss-allocation), recognizes that meta-intentions about legal enforceability are determined objectively, yet resists collapsing promise into consent: the promissory morality still explains why parties value assurance, why they may shape remedies and even whether a commitment is legally cognizable, and why the legal system should structure defaults around voluntary undertakings. The divergence between promise and consent at the threshold of legal enforceability does not, for Fried, defeat the normative primacy of promising; rather, it reflects the inevitable role of third-party institutions (courts, legislatures) when moral obligations are transposed into legal ones.
Overall, Fried offers a less doctrinaire, more institutional defense of Contract as Promise: keep promise at the core, integrate economic insights, and accept that interpretation, defaults, and remedial design are constitutive features of a legal order that enforces self-assumed obligations among free and equal agents.
2) Randy E. Barnett — “A Consent Theory of Contract,” 86 Colum. L. Rev. 269 (1986)
Barnett begins from the normative question: when is the use of legal force to enforce interpersonal commitments morally justified? He criticizes the five leading accounts i.e. will, reliance, fairness, efficiency, bargain—as partial and proposes a unifying alternative: consent within a broader entitlements theory. On this view, private law delineates how rights are acquired (property), used (tort), and transferred (contract). Contract’s special role is to identify circumstances in which alienable entitlements are validly transferred by consent; consent supplies the moral component that distinguishes valid from invalid transfers and justifies enforcement.
Because legal enforcement entails coercion, consent theory explains why and when coercion is permissible: only when an individual has validly transferred a right and the transferee’s claim is wrongfully interfered with does rectification (including force) become justified to restore the entitlement baseline. This clarifies the moral/legal boundary and reframes contract breach as wrongful interference with a rights transfer, not merely failure to keep a promise.
Doctrinally, consent theory explains the objective theory and its traditional defenses. Courts presumptively enforce commitments when there is a manifested intention to create legal relations that is objective appearance, not subjective psychology, grounds the prima facie case. But defenses such as duress, fraud, incapacity, mistake, impracticability, and frustration negate the voluntariness or background assumptions necessary for a valid transfer, thus defeating enforcement without reviving a subjective will theory.
The approach also marks the limits of contract: agreements purporting to transfer inalienable rights (e.g., slavery-like commitments) or to authorize violations of third-party rights are void because the underlying rights are not validly transferable; here contract’s dependence on rights theory is decisive. This dependence, Barnett argues, is often implicit even in rival theories, which assume entitlements when invoking will, reliance, or efficiency.
Barnett further suggests that promising is a special case of consent: focusing exclusively on promises obscures contract’s broader function of rights transfers (including gifts, nominal consideration, and present sales). Consequently, the theory reframes consideration and explains why some non-bargain commitments may still be enforced when valid consent is manifested.
In sum, consent theory offers a unified moral and doctrinal account: enforce objective, voluntary manifestations to be legally bound; recognize defenses that defeat voluntariness; and limit enforcement where transfers concern inalienable or otherwise invalid rights. It aligns contract with a liberal structure of rights and clarifies when state coercion is justified in private exchange.
Law And Policy 