Abstract:
Is Anglo-American contract law based on promise as its ethical basis? Fried in his book Contract as Promise argues that indeed contract is based on promise, and he proceeds to show how the various areas of contract law such as acceptance, agreement, bargain, are analogous to the framework of the ethics of promise. Atiyah, along with others, finds fault in this. In particular, Atiyah examines detrimental reliance as proof that the moral underpinnings of contract law extend beyond promise into social and economic considerations. Atiyah's side seems to complicate Fried's position. However, if one is willing to become more Friedian than Fried and to utilize a more extensive definition of promise, such as Melden's, Fried's case retains coherence. However, does this definition become too cumbersome for common understanding? Can such distinction be held onto as an absolute starting point for law? What is mechanism and what is principled ruling?There is an epilogue to this first polemic. The questions of linguistic order and the development of contract are further discussed. The epilogue is in a much different spirit than the central argument. Instead of careful discussion of philosophers, it intends to paint, by broad strokes, a picture, as Faust does, into the troubling and problematic notion of promise and self in modernity. This is at the same time a tributary of thought from the main argument and a meta-questioning of the ideals upon which that this essay is grounded.
