Title: Liberalism and Freedom from the Promise Theory of Contract
Abstract: If law and economics scholars represent the'utilitarian wing' of contracts scholarship,1 it is not entirely clear who represents the liberal wing. Liberalism is somewhat in vogue in contract scholarship now, with a wide variety of contract theories claiming to be in some sense liberal. One of the better known liberal theories of contract is the promise theory, most famously articulated by Charles Fried.2 Promise theorists seek to justify and/or explain contract theory by appeal to the moral obligation to keep one's promises. In a recent book Dori Kimel takes a close look at the practice of promising, and compares and contrasts it to the practice of contracting.3 By exploring the distinct benefits of each practice he looks to work, as his subtitle announces, towards his own'liberal theory of contract. Kimefs well written book can be briefly summarised as follows. Most of the book is an inquiry into the relationship between contract law and the practice of promising. Kimel concludes, roughly, that while both facilitate a form of 'reliance, co-operation, or co-ordination between people,' promise has the added benefit of enhancing personal relationships. It relies on trust, and the performance of promises openly signifies a recognition of and respect for personal obligations even absent legal obligations. Contract law, on the other hand, allows people to rely on the word of others even absent a personal relationship with them. In so doing it enhances 'personal detachment' by allowing parties to remain at arm's length. Thus, argues Kimel, when Fried practically identified contracting with promising he failed to recognise important differences between the two practices. Kimel then draws on these differences to comment on the relationship of liberalism to contract. As he points out, liberalism is often identified with a certain 'rigid' conception of freedom of contract, in which parties are to be free to order their affairs as they wish, and government intrusion is to be minimal (i.e. contracts are to be enforced according to the parties' wishes as expressed at the time of contracting). The justification for the rigid conception is normally some more or less thoroughly articulated reference to individual autonomy.
Publication Year: 2004
Publication Date: 2004-07-27
Language: en
Type: article
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