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You Do Have To Keep Your Promises: A Disgorgement Theory Of Contract Remedies, Steve Thel, Peter Siegelman
You Do Have To Keep Your Promises: A Disgorgement Theory Of Contract Remedies, Steve Thel, Peter Siegelman
Faculty Scholarship
Contract law is generally understood to require no more of a person who breaches a contract than to give the injured promisee the "benefit of the bargain." The law is thus assumed to permit a promise-breaker to keep any profit remaining from breach, after putting the victim in the position he would have been in had the promise been performed. This conventional description is radically wrong: across a wide range of circumstances, standard contract doctrines actually do require people to keep their promises, or to disgorge their entire profit from breach if they do not. Rather than protecting the expectation …
Wilfulness Versus Expectation: A Promise-Based Defense Of Wilfull Breach Doctrine, Steve Thel, Peter Siegelman
Wilfulness Versus Expectation: A Promise-Based Defense Of Wilfull Breach Doctrine, Steve Thel, Peter Siegelman
Faculty Scholarship
Willful breach doctrine should be a major embarrassment to contract law. If the default remedy for breach is expectation damages designed to put the injured promisee in the position she would have been in if the contract had been performed, then the promisor's behavior-the reason for the breach-looks to be irrelevant in assessing damages. And yet the cases are full of references to "willful" breaches, which seem often to be treated more harshly than ordinary ones based on the promisor's bad/willful conduct. Our explanation is that willful breaches are best understood as those that should be prevented or deterred because …