Marriage: An Unenforceable Promise

In “Contract as Promise,” Charles Fried admits that several kinds of promises neither are nor ought to be enforced by law. More specifically, Fried alludes to the institution of marriage, as well as contracts of employment, insurance, and carriage, as the type of promises that should not be enforced by law.

Fried’s rationale for such rests on the notion that the aforementioned arrangements, although legally binding since they are initiated by agreement, are “singled out and made subject to a set of rules that often have little to do with that agreement” (Fried 57). Looking into the promises that pertain to marriage, in this piece I will argue that Fried’s admission is not a devastating objection to his overall theory of contract but rather, if taken into consideration, strengthens his argument.

First, I will explain Fried’s definition of a promise ad introduce his theory of contract as promise. Second, I will explain what marriage is and, using Fried’s definition, why it is considered to be a promise. I will also indicate the purpose of legislative recognition. Third, invoking the contract as promise principle and the fundamental element of a promise, I will argue why marriage should not be enforced by laws and how not enforcing marriage does not violate Fried’s contract as promise theory.

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