The Expectation Remedy and the Promissory Basis of Contract (with Alan Schwartz)

Daniel Markovits, Yale Law School
Alan Schwartz


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

William Perdue.

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.