Private Law Theory

ABSTRACT
Prepared for the Bocconi Conference on Contract Theory, this brief Essay distills highlights and takeaways from our book-in-progress Freedom of Contract. In the book, we first crystallize the guiding principles of a genuinely liberal contract theory, then demonstrate how this theory shapes contract law and where law falls short, and finally show how freedom of contract obligates states to ensure the awesome power of contract serves individual self-determination. Our main conceptual claim is that contracts are best understood as voluntary joint plans that requires law’s backing. Our central normative claim is that state enforcement of contracts can be justified only to the extent they enhance individuals’ autonomy, defined as self-determination.

Rather than rehearse the book’s detailed arguments, this Essay briefly previews nine (of many) takeaways that emerge from adopting a genuinely liberal approach to contract theory and law. Here, we: (1) highlight contract’s irreducible role, (2) introduce the autonomy default paradigm, (3) explain the damages/specific performance boundary, (4) show how relational justice shapes precontractual bargaining and performance, (5) call for abolishing consideration doctrine, (6) reconstruct third party beneficiary law, (7) return work law to contract law, (8) reshape consumer contract law, and (9) cabin choice of law. Genuinely liberal contract theory affects how every aspect of contract law should be taught and studied, practiced and reformed.

Dagan, Hanoch and Heller, Michael, Genuinely Liberal Contract Law (October 20, 2025).