Academic

Barnett on Contract as Consent

By Lawrence Solum

Randy E. Barnett (Georgetown University Law Center) has posted Contract is Not Promise; Contract is Consent (Suffolk University Law Review, Forthcoming) on SSRN. Here is the abstract:

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. In this essay, I observe 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, I explain 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.

Highly recommended. Download it while its hot!

Full post as published by Legal Theory Blog on March 29, 2011 (boomark / email).