The fundamental paradox of contract law

In its first review of Farnsworth's original contracts treatise, from the Harvard Law Review (Vol 97, No. 5, p. 1239):
"The premise that contractual obligation derives from the act of promising, together with the theory that contractual freedom should be maximized, suggests the need for a formal theory of consideration. If contractual obligation is essentially promissory, courts need some means of distinguishing enforceable promises from unenforceable promises. The protection of contractual freedom seems to require as formal a criterion as possible, for the more formal the criterion, the less courts will be able surreptitiously to substitute the judge's terms for those of the parties. / The bargain theory of consideration handsomely fits the bill...As Farnsworth notes, however, a bargain theory of consideration in unavoidably plagued by serious defects."

The Law review article identifies as Farnsworth's greatest shortcoming that he does not do more to attempt to resolve "this tension between freedom of contract and reliance-based liability." Id. I learn now from a disciple of the Farnsworth school, and I had noticed this tendency myself.

For someone hoping to learn more about the theories underlying contracts, both Farnswroth and this law review article are easily accessible classics.

Cardozo, from "Wood v. Lucy, Lady Duff-Gordon" (1917, Court of Appeals of New York)

Benjamin Nathan Cardozo: "The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal."

From Corbin on Contracts

Quote: "When the skies begin to fall, Justice removes the blindfold from her eyes and tilts the scales." (3)