In the mid-1970s, it was an article offaith that contract was not properly conceived as a means by which persons could, by their own choice, make law for themselves to govern their relations. Instead, contract was thought best conceived as the rectification of injuries persons may have caused by their verbal conduct in much the same way that persons have a duty to rectify the injuries caused by their physical acts. With contracts, these injuries consisted of detrimental reliance on the words of another. So conceived, both contract and tort duties are imposed by law, and do not arise from the parties' consent. Thus contract law is conceptually indistinguishable from tort law.
The doctrinal implications of this reliance-based conception of contract were twofold. First, since duties were imposed by law rather than being the product of the parties' consent, we need not concern ourselves with many of the niceties of finding mutual assent in the formation stage. Second, if reliance was the basis of contract, then the normal expectation measure of recovery was also suspect--justified, if at all, as an indirect way to protect what Fuller and Perdue labeled the "reliance interest." Indeed, it says much about the conventional wisdom during the 1960s and 1970s that Fuller and Perdue's justly esteemed 1936 article, "The Reliance Interest in Contract Damages," received far greater attention than Fuller's later "Consideration and Form."
46 J. Legal Educ. 518-536 (1996)
Scholarly Commons Citation
Barnett, Randy E., "The Death of Reliance" (1996). Georgetown Law Faculty Publications and Other Works. Paper 1245.