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Curtis Bridgeman & John C.P. Goldberg, Do Promises Distinguish Contract from Tort?, 45 Suffolk U. L. Rev. 873 (2012).

Abstract: Contract as Promise, Charles Fried’s modern classic, famously argued that contract law stands apart from tort law because it is grounded on the moral principle that promises must be kept. In this contribution to a symposium marking the 30th anniversary of the book’s publication, we argue that Fried’s argument is impaired by an unresolved tension between its libertarian and its moralistic aspects. Insofar as he emphasizes the voluntaristic nature of promissory obligations, Fried succeeds in generating a sharp distinction between contract and tort. And yet, by doing so, he undermines the notion that contract law is grounded in the moral principle that a promise must be kept. This tension, we argue, is best appreciated by considering a special kind of agreement, namely, one in which the parties agree that their agreement shall be morally binding only, not legally binding. The voluntarist side of Fried’s argument suggests that courts should honor the term that renders the agreement legally unenforceable. Yet the moralist side of Fried’s argument suggests that courts should ignore that aspect of the agreement, since otherwise contract law would not be upholding the moral obligations that attend the promises in the agreement. Having offered this critique, we conclude on a more constructive note. For Fried was quite right to perceive important links between contract and promise; links that had been missed or downplayed by the death-of-contract theorists to whom he was responding. Contract may not be grounded in the morality of promising, as Fried maintained, but contracts routinely incorporate promissory morality, a social fact reflected in contract doctrine. Contractual obligations are distinct from tort obligations because the former, like promissory obligations, are defined by agreement. Moreover, contracts tend to create genuine obligations of the sort incurred when promises are made, as opposed to merely creating options. Finally, contractual obligations, like promissory obligations, carry with them a modest internal morality — the morality of good faith — and thus contractual arrangements ordinarily should be interpreted in light of that morality. For helping to articulate these and other connections between contracting and promising, Contract as Promise deserves its status as a classic in contract theory.