Contract as Promise Charles Fried - Contends that contract law hinges on the moral doctrine that a person’s explicit, intentional act of promising is morally binding and therefore also legally enforceable. - Reliance cannot fully account for why the law enforces contracts, for, most frequently, expectation, not reliance, serves as the basis of compensation for breached contracts. - Fried sees contracts as exemplifying a distinctly liberal principle. o That people should be free to live their lives as they see fit. - When a person chooses to make a promise or a contract, he transforms an act from something that was previously morally neutral into something that is now morally required. - Our free choices make a difference in the world and we should be held responsible for both the good and bad that occur as the result of our free choices. - Fried is thus led to conclude that contracts derive their moral justification from their intimate relationship to promises. - It is a first principle of liberal morality that we be secure in what is ours – so that our persons and property not be open to exploitation by others, and that from a sure foundation we may express our will and expend our powers in the world. - The device that gives trust its sharpest, most palpable form is promise. o By promising we put it in another man’s hands a new power to accomplish his will, though only a moral power:  What he sought to do alone he may now expect to do with our promised help, and to give him this new facility was our very purpose in promising. o Promise puts the moral charge on a potential act – the wrong is done later, when the promise is not kept – while a lie is wrong committed at the time of its utterance.  When I speak I commit myself to the truth of my utterance, but when I promise I commit myself to act, later. - I should make restitution only if I benefit unjustly, which I do if I deceive you – as when I lie to you about my intention. - A more common attempt to reduce the force of a promise to some other moral categoryinvokes the harm you suffer in relying on my promise. - Perhaps the statement of intention in promising is binding because we not only foresee reliance, we invite it: o We intend the promise to rely on the promise. - A promise invokes trust in my future actions, not merely in my present sincerity. o We need to isolate an additional element, over and above benefit, reliance, and the communication of intention.  The additional element must commit me, and commit me to more than the truth of some statement.- The possibility of commitment permits an act of generosity on my part, permits me to pursue a project whose content is that you be permitted to pursue your project. The Moral Obligation of Promise - Promising is different, since (unlike language, where it is overwhelmingly in the interest of all that everyone comply with linguistic conventions, even when language is used to deceive) it will often be in the interest of the promiser not to conform the convention when it comes time to render his performance. o Therefore individual self-interest is not enough to sustain the convention, and some additional ground is needed to keep it from unraveling.  There are two principal candidates: - External sanctions and moral obligation - The external sanction of public opprobrium, of loss of reputation for honesty, which society attaches to promise-breaking, is internalized, becomes instinctual, and accounts for the sense of the moral obligation of promise. o Hume’s account of obligation is more like an argument against my keeping the promise, for it tells me how any feelings of obligation that I may harbor have come to lodge in my psyche and thus is the first step toward ridding me of such inconvenient prejudices. - Considerations of self-interest cannot supply the moral basis of my obligation to keep a promise. - If legislation is our focus, then the contradictions of rule-utilitarianism does not arise, since we are instructing those whose decisions can only take the form of issuing rule. - The obligation to keep a promise is grounded not in arguments of utility but in respect for individual autonomy and in trust. o Autonomy and trust are grounds for the institution of promising as well, but the argument for individual obligation is not the same.  To abuse that confidence now is like (but only like) lying: - The abuse of a shared social institution that is intended to invoke the bonds of trust. o A liar is a promise-breaker each use another person. - The utilitarian counting the advantages affirms the general importance of enforcing contracts. o The moralist of duty, however, sees promising as a device that free, moral individuals have fashioned on the premise of mutual trust, and which gathers its moral force from that premise. - To summarize: o There exists a convention that defines the practice of promising and its entailments. - This convention provides a way that a person may create expectations in others. o By virtue of the basic Kantian principles of trust and respect, it is wrong to invoke that convention in order to make a promise, and then to break it. What a Promise is Worth- If I make a promise to you, I should do as I promiseo And if I fail to keep my promise, it is fair that I should be made to hand over the equivalent of the promised performance. - The assault on the classical conception of contract, the concept I call contract as promise, has centered on the connection – taken as canonical for some hundred years – between contract law and expectation damages. - The insistence on reliance or benefit is related to disputes about the nature of promising. - The distress may be analyzed in three forms: o The promisor regrets having to pay for what he has bought (which may only havebeen the satisfaction of promising a gift or the thrill of buying a lottery ticket or stock option), though he would readily do the same thing again. o The promisor regrets his promise because he was mistaken about the nature of the burdens he was assuming o The promisor made no mistake about the facts or probabilities at all, but now that it has come time to perform he no longer values the promise as highly as when he made it. - Since contracts invoke and are invoked by promises, it is not surprising that the law cameto impose on the promises it recognized the same incidents as morality demands. Remedies in and around the Promise - Those who have an interest in