The Expectation Remedy and the Promissory Basis of Contract (with Alan Schwartz), 45 Suffolk University Law Review 799 (2012)
Charles Fried's Contract as Promise stands as a model of principled legal
argument. It took a single, integrating thought-that a promise lies at the heart
of every contract-and then reconstructed broad swaths of doctrine as
elaborations of that thought.
The book's argument is all the more impressive because the promissory
ideal in whose name it seeks to unify contract law is not straightforward. On
the contrary, grounding contract in promise highlights two of contract law's
most distinctive yet least understood features: that the law establishes liability
strictly, rather than based on fault; and that it creates forward-looking rather
than the usual backward-looking entitlements, entitlements to be made better
off rather than to secure the status quo ante. These features of promissory
obligation have long been considered mysterious by a chain of thinkers whose
pedigree goes back at least to David Hume and, in the law, to Lon Fuller and
Fried understood the unusualness of promissory obligation and hence the
shaky foundation that emphasizing promise places beneath contract law. He
thus began Contract as Promise by addressing the problem of establishing the
ground of promise head on, in two separate ways.
Date of Authorship for this Version
Markovits, Daniel and Schwartz, Alan, "The Expectation Remedy and the Promissory Basis of Contract (with Alan Schwartz)" (2012). Faculty Scholarship Series. 4655.