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Full-Text Articles in Law
In (Partial) Defense Of Strict Liability In Contract, Robert E. Scott
In (Partial) Defense Of Strict Liability In Contract, Robert E. Scott
Michigan Law Review
Many scholars believe that notions of fault should and do pervade contract doctrine. Notwithstanding the normative and positive arguments in favor of a fault-based analysis of particular contract doctrines, I argue that contract liability is strict liability at its core. This core regime is based on two key prongs: (1) the promisor is liable to the promisee for breach, and that liability is unaffected by the promisor's exercise of due care or failure to take efficient precautions; and (2) the promisor's liability is unaffected by the fact that the promisee, prior to the breach, has failed to take cost-effective precautions …
Fault In Contract Law, Eric A. Posner
Fault In Contract Law, Eric A. Posner
Michigan Law Review
A promisor is strictly liable for breaching a contract, according to the standard account. However, a negligence-based system of contract law can be given an economic interpretation, and this Article shows that such a system is in some respects more attractive than the strict-liability system. This may explain why, as a brief discussion of cases shows, negligence ideas continue to play a role in contract decisions.
The Fault Principle As The Chameleon Of Contract Law: A Market Function Approach, Stefan Grundmann
The Fault Principle As The Chameleon Of Contract Law: A Market Function Approach, Stefan Grundmann
Michigan Law Review
This Article begins with a comparative law survey showing that all legal systems do not opt exclusively for fault liability or strict liability in contract law, but often adopt a more nuanced approach. This approach includes intermediate solutions such as reversing the burden of proof, using a market ("objective") standard of care, distinguishing between different types of contracts, and providing a "second chance" to breaching parties. Taking this starting point seriously and arguing that it is highly unlikely that all legal systems err, this Article argues that the core question is how and when each liability regime should prevail or …
The Fault That Lies Within Our Contract Law, George M. Cohen
The Fault That Lies Within Our Contract Law, George M. Cohen
Michigan Law Review
Scholars and courts typically describe and defend American contract law as a system of strict liability, or liability without fault. Strict liability generally means that the reason for nonperformance does not matter in determining whether a contracting party breached. Strict liability also permeates the doctrines of contract damages, under which the reason for the breach does not matter in determining the measure of damages, and the doctrines of contract formation, under which the reason for failing to contract does not matter In my Article, I take issue with the strict liability paradigm, as I have in my prior work on …
An Information Theory Of Willful Breach, Oren Bar-Gill, Omri Ben-Shahar
An Information Theory Of Willful Breach, Oren Bar-Gill, Omri Ben-Shahar
Michigan Law Review
Should willful breach be sanctioned more severely than inadvertent breach? Strikingly, there is sharp disagreement on this matter within American legal doctrine, in legal theory, and in comparative law. Within law-and-economics, the standard answer is "no "-breach should be subject to strict liability. Fault should not raise the magnitude of liability in the same way that no fault does not immune the breaching party from liability. In this paper, we develop an alternative law-and-economics account, which justifies supercompensatory damages for willful breach. Willful breach, we argue, reveals information about the "true nature" of the breaching party-that he is more likely …
Foreword: Fault In American Contract Law, Omri Ben-Shahar, Ariel Porat
Foreword: Fault In American Contract Law, Omri Ben-Shahar, Ariel Porat
Michigan Law Review
The basic rule of liability in tort law is fault. The basic rule of liability in contract law is no fault. This is perhaps one of the most striking divides within private law, the most important difference between the law of voluntary and nonvoluntary obligations. It is this fault line (speaking equivocally) that the present Symposium explores. Is it a real divide-two opposite branches of liability within private law-or is it merely a rhetorical myth? How can it be justified? As law-and-economics scholars, this fault/no-fault divide between contract and tort is all the more puzzling. In law and economics, legal …
A Comparative Fault Defense In Contract Law, Ariel Porat
A Comparative Fault Defense In Contract Law, Ariel Porat
Michigan Law Review
This Article calls for the recognition of a comparative fault defense in contract law. Part I sets the framework for this defense and suggests the situations in which it should apply. These situations are sorted under two headings: cases of noncooperation and cases of overreliance. Part II unfolds the main argument for recognizing the defense and recommends applying the defense only in cases where cooperation or avoidance of overreliance is low cost.
The Role Of Fault In Contract Law: Unconscionability, Unexpected Circumstances, Interpretation, Mistake, And Nonperformance, Melvin Aron Eisenberg
The Role Of Fault In Contract Law: Unconscionability, Unexpected Circumstances, Interpretation, Mistake, And Nonperformance, Melvin Aron Eisenberg
Michigan Law Review
It is often asserted that contract law is based on strict liability, not fault. This assertion is incorrect. Fault is a basic building block of contract law, and pervades the field. Some areas of contract law, such as unconscionability, are largely fault based. Other areas, such as interpretation, include sectors that are fault based in significant part. Still other areas, such as liability for nonperformance, superficially appear to rest on strict liability, but actually rest in significant part on the fault of breaking a promise without sufficient excuse. Contract law discriminates between two types of fault: the violation of strong …
Fault At The Contract-Tort Interface, Roy Kreitner
Fault At The Contract-Tort Interface, Roy Kreitner
Michigan Law Review
The formative period in the history of contract and tort (in the second half of the nineteenth century) may be characterized by the cleavage of contract and tort around the concept of fault: tort modernized by moving from strict liability to a regime of "no liability without fault," while contract moved toward strict liability. The opposing attitudes toward fault are puzzling at first glance. Nineteenth-century scholars of private law offered explanations for the opposition, reasoning that alternative ideas about fault account for the different character of state involvement in enforcing private law rights: tort law governs liabilities imposed by law …
The Many Faces Of Fault In Contract Law: Or How To Do Economics Right, Without Really Trying, Richard A. Epstein
The Many Faces Of Fault In Contract Law: Or How To Do Economics Right, Without Really Trying, Richard A. Epstein
Michigan Law Review
Modern law often rests on the assumption that a uniform cost-benefit formula is the proper way to determine fault in ordinary contract disputes. This Article disputes that vision by defending the view that different standards of fault are appropriate in different contexts. The central distinction is one that holds parties in gratuitous transactions only to the standard of care that they bring to their own affairs, while insisting on the higher objective standard of ordinary care in commercial transactions. That bifurcation leads to efficient searches. Persons who hold themselves out in particular lines of business in effect warrant their ability …
Soviet Tort Law: The New Principles Annotated, Whitmore Gray
Soviet Tort Law: The New Principles Annotated, Whitmore Gray
Articles
In 1961, the federal legislature, the USSR Supreme Soviet, finally adopted a skeleton code of fundamental principles of civil law.10 This recodification, which incorporates 40 years of case law and doctrinal development as well as some major innovations, will be the basis for individual civil codes to be adopted in each of the 15 union republics. While there may be some slight modifications, and certainly some variety in the degree of additional detail included in the individual codes by each republic,11 these Principles present already a fairly comprehensive picture of the shape of the future law. They are about as …
Private Insurance As A Solution To The Driver-Guest Dilemm, Harvey R. Friedman
Private Insurance As A Solution To The Driver-Guest Dilemm, Harvey R. Friedman
Michigan Law Review
The duty of the driver of an automobile to his nonpaying passenger, and liability arising from the breach of that duty, has long presented a troublesome area of litigation for the courts and the parties involved. Application of standards unsuited for the peculiar risks of automotive transportation has produced inadequate compensation in some cases and excessive recoveries in others. Meanwhile, trial calendars are overcrowded with personal injury litigation, and insurance companies must bear the awards of sympathetic juries and those resulting from collusion between passenger and driver. The over-all expense of this method of determination of liability, far too little …
The Casual Relation Issue In Negligence Law, Leon Green
The Casual Relation Issue In Negligence Law, Leon Green
Michigan Law Review
Two significant legal studies of "Causation"-one English, one American-have been recently published. The English book brings to the subject more scholarly learning and a more comprehensive examination of its literature than any other book that has been written. The authors are devoted disciples of causation principles and make a stout defense of the causation concept as the structural core of negligence law. They examine the philosophical, common sense and semantic backgrounds of causal concepts as the basis of legal liability, find that they have merit, and launch extended, and sometimes devastating, attack upon theories that question their adequacy, though in …
Torts-The Duty To Rescue-"Am I My Brother's Keeper?
Torts-The Duty To Rescue-"Am I My Brother's Keeper?
Michigan Law Review
A recent case, decided by the Supreme Court of Indiana, and commented upon elsewhere in this issue, involved the interesting question as to the existence of a duty to go to the aid of a person who is in helpless peril through no initial fault on the part of the defendant.
Trusts - Tort Liability Of Trustee In His Representative Capacity, Reid J. Hatfield
Trusts - Tort Liability Of Trustee In His Representative Capacity, Reid J. Hatfield
Michigan Law Review
Plaintiff brought suit to recover damages for injuries allegedly sustained because of the unsafe condition of a hotel building owned and operated by the defendant trustee. The trustee was an insolvent bank and trust company in the hands of the state superintendent of banks, who was also joined as defendant. The prayer was for a "judgment against the defendants in their fiduciary capacity toward the trust." On appeal of the lower court's judgment sustaining defendants' demurrer, held, that the trustee could be sued in his representative capacity. Carey v. Squire, 63 Ohio App. 476, 27 N. E. (2d) …
Torts -Absolute Liability-"Rylands V. Fletcher"
Torts -Absolute Liability-"Rylands V. Fletcher"
Michigan Law Review
The defendant, owner of an 11 acre plot, licensed nomadic caravan dwellers to come on the field and live there. Approximately two to three hundred people were on the land. Some of the group deposited human excrement on the adjoining lands, allowed their horses to trespass upon and foul neighboring lands, were often noisy in returning to the land, and frequently trespassed upon the neighboring land in going to or leaving the plot. Held, in an action for public nuisance, that the defendant was bound to prevent the occupants of his land from committing the acts in question. An …
Negligence-Res Ipsa Loquitur-Presumption Of Management From Ownership-Unattended Automobile
Negligence-Res Ipsa Loquitur-Presumption Of Management From Ownership-Unattended Automobile
Michigan Law Review
After the sound of a crash, the defendant's motortruck was found on the plaintiff's porch. Held, the doctrine of res ipsa loquitur was applicable.
Liability Without Fault, John B. Waite
Liability Without Fault, John B. Waite
Articles
In Ives v. South Buffalo Ry. Co., 201 N. Y. 271, appeared, as a basis for the decision, the statement that "When our Constitutions were adopted, it was the law of the land that no man who was without fault or negligence could be held liable in damages for injuries sustained by another. That is still the law." Mr. Justice McKenna has recently voiced the same idea. In his dissenting opinion in Arizona Copper Co. v. Hammer, 39 Sup. Ct. Rep. 553, he contends that the Workmen's Compensation Act of Arizona is unconstitutional, because, "It seems to me to be …