Charles Fried, Contract as Promise Thirty Years On, 45 Suffolk U. L. Rev. 961 (2012).
Abstract: At the time Contract as Promise was written, there were two views of the subject in the field: a traditional, doctrinal and not particularly theorized view that saw contract as the law’s way of allowing private parties to create and enforce the terms that would govern transactions and long-term undertakings, and a burgeoning literature that saw contract law as a tool of social control imposing obligations on parties growing in part, but only in part, from dealings into which they had voluntarily entered. This latter view saw contract law disappearing into tort law, which is quite frankly a means for adjusting—on grounds of perceived fairness, social utility or redistribution—relations between parties. The former was associated with an individualistic ethos friendly to capitalism and free markets, the latter with a more socializing, communitarian ethos. The signal works of this latter movement were Grant Gilmore’s The Death of Contract and Patrick Atiyah’s The Rise and Fall of Freedom of Contract. Atiyah nicely captured the time’s anti-individualist and anti-capitalist tone. . .