Private Law Theory

ABSTRACT
According to the standard picture, contractual or market-based relations seem to be in tension with the pursuit of the common good. The pursuit of the common good in public life requires an ethic of mutual concern directed at the pursuit of shared ends. However, on the surface, contract which is the basic building block of a market society seems to involve the pursuit of self-interest to further private purposes. Indeed, Waheed Hussain has sounded the alarm that markets might breed a disregard for the interests of other citizens where they are used to allocate vitally important goods and services, such as healthcare and education. In this chapter, I argue that the standard view of contract, though widely held, is in fact deeply mistaken. Far from being opposed to the common good, I argue relying on the largely overlooked connection that Charles Fried drew between contracts and trust, that contractual relations involve a pattern of reasoning based on a form of cooperation infused by trust in pursuit of shared ends. Although Fried focused on how the fostering of such relations grounds contractual obligation, they also, I argue, explain how contract law contributes to the common good.

Saprai, Prince, Contract Law and the Common Good (August 12, 2025).