Charles Fried is best known (among scholars of contract law) for his “contract as promise” thesis, while Seana Shiffrin is widely known for her influential 2007 Harvard Law Review article on the divergence between contract and promise. We too are very much interested in the morality of promising — especially the problem of “illegal agreements” — and we now wish to pose a simple question to Professors Fried and Shiffrin: why doesn’t criminal law apply to breaches of contract? That is, if breaching a contract (or breaking a promise generally) is such a terrible or immoral act, then one might expect to see some overlap between criminal law and contract law, just like we see between some crimes and some intentional torts, like fraud, assault and battery, theft (conversion), false imprisonment, etc.
Our simple question to Professors Fried and Shiffrin (and their kind) is not an exercise in idle speculation. After all, some illegal agreements — such as certain restraints of trade and other monopolistic conspiracies — might generate not only civil but also criminal liability. Here, however, our focus is not on illegal agreements like price fixing or market allocation (or drug sales). Instead, our focus is on run-of-the-mill or garden-variety breaches of contract, for which only “civil” remedies are available, such as (i) the payment of monetary compensation or, in some rare cases, (ii) the remedy of specific performance, but never the criminal sanctions of imprisonment or regulatory fines. In brief, bare breaches of contract are beyond the scope of criminal law. Why?