Contracts Commons^™

Remedies: A Guide For The Perplexed, Doug Rendleman

Scholarly Articles

Remedies is one of a law student’s most practical courses. Remedies students and their professors learn to work with their eyes on the question at the end of litigation: what can the court do for the successful plaintiff? Remedies develops students’ professional identities and broadens their professional horizons by reorganizing their analysis of procedure, torts, contracts, and property around choosing and measuring relief - compensatory damages, punitive damages, an injunction, specific performance, disgorgement, and restitution. This article discusses the law-school course in Remedies - the content of the Remedies course, the Remedies classroom experience, and Remedies outside the classroom through …

The Expectation Measure And Its Discontents, Shawn J. Bayern, Melvin A, Eisenberg

Scholarly Publications

No abstract provided.

Solidifying Arkansas's Liquidated Damage Law After S.O.G.-San-Ore-Gardner V. Missouri Pacific Railroad Co.: It's Not All Water Under The Bridge, David C. Jung

University of Arkansas at Little Rock Law Review

The construction of the Benzal Bridge over the White River in rural Arkansas brought about years of litigation between Missouri Pacific Railroad Company and contractor San Ore-Gardner, the crux of which was whether the liquidated damages provision in the parties' contract was enforceable. The liquidated damages provision at issue provided that San Ore-Gardner would be liable to Missouri Pacific Railroad Company for damages in the amount of $600 per day if performance of the contract was not completed within the specified time period. Although Missouri Pacific Railroad Company did contribute to the over two year delay in completion of the …

Penalty Clauses As Remedies: Exploring Comparative Approaches To Enforceability, Jack Graves

Touro Law Review

No abstract provided.

Selling Structured Settlements: The Uncertain Effect Of Anti-Assignment Clauses , Gregory Scott Crespi

Pepperdine Law Review

No abstract provided.

The Limits Of Limiting Liability In The Battle Of The Forms: U.C.C. Section 2-207 And The "Material Alteration" Inquiry, Colin P. Marks

Pepperdine Law Review

No abstract provided.

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 …

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.

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 …

Could Breach Of Contract Be Immoral?, Seana Shiffrin

Michigan Law Review

Some scholars defend the contract law's ban on punitive damage awards on the grounds that breach of contract, in itself, is not morally wrong. In this Article, I offer two responses. First, I refute one prevalent argument of Steven Shavell's in support of this view. Shavell argues that contractual breach is not immoral in those cases in which the legal regime would offer expectation damages because the contracting parties would not have agreed to require performance had they explicitly deliberated about the circumstances occasioning the breach. I criticize his argument for failing to justify this hypothetical-contract approach and, in any …

Why Breach Of Contract May Not Be Immoral Given The Incompleteness Of Contracts, Steven Shavell

Michigan Law Review

There is a widely held view that breach of contract is immoral. I suggest here that breach may often be seen as moral, once one appreciates that contracts are incompletely detailed agreements and that breach may be committed in problematic contingencies that were not explicitly addressed by the governing contracts. In other words, it is a mistake generally to treat a breach as a violation of a promise that was intended to cover the particular contingency that eventuated.

When Is A Willful Breach "Willful"? The Link Between Definitions And Damages, Richard Craswell

Michigan Law Review

The existing literature on willful breach has not been able to define what should count as "willful." I argue here that any definition we adopt has implications for just how high damages should be raised in those cases where a breach qualifies as willful. As a result, both of these issues-the definition of "willful," and the measure of damages for willful breach-need to be considered simultaneously. Specifically, if a definition of "willful" excludes all breachers who behaved efficiently, then in theory we can raise the penalty on the remaining inefficient breachers to any arbitrarily high level ("throw the book at …

The Failure Of Economic Interpretations Of The Law Of Contact Damages, Nathan B. Oman

Faculty Publications

The law of contracts is complex but remarkably stable. What we lack is a widely accepted interpretation of that law as embodying a coherent set of normative choices. Some scholars have suggested that either economic efficiency or personal autonomy provide unifying principles of contract law. These two approaches, however, seem incommensurable, which suggests that we must reject at least one of them in order to have a coherent theory. This Article dissents from this view and has a simple thesis: Economic accounts of the current doctrine governing contract damages have failed, but efficiency arguments remain key to any adequate theory …

Price Discrimination With Contract Terms: The Lost Volume Problem, Barry E. Adler, Alan Schwartz

ExpressO

In a common commercial pattern, the seller of a standard product contracts with one buyer and then sells to another at the contract price after the initial buyer breaches. Sellers argue, and courts largely agree, that the seller could have served the contract buyer as well as the later buyer; hence, the seller is entitled to retain a down payment to the extent of, or sue to recover, the profit – price less cost – that it would have realized on the initial sale had that sale been completed. Some courts and many scholars disagree, arguing that resale of the …

Contracting Out Of Article 2: Minimizing The Obligation Of Performance & Liability For Breach, Sarah Howard Jenkins

Law Faculty Scholarship

No abstract provided.

Damages For Mental Distress And Other Intangible Loss In A Commercial Context, Shannon O'Byrne

Dalhousie Law Journal

As a general rule, contracts law does not permit an award of general damages for mental distress or other intangible loss. There are several rationales for this, including: plaintiffs are to bear their disappointment or upset with mental fortitude; without the rule, courts would be awash in litigation since every breach of contract brings with it some degree of emotional distress; without the rule, plaintiffs may fabricate or exaggerate the degree of their upset; and the rule simply reflects the lack of foreseeability of such loss under Hadley v. Baxendale. Notwithstanding the general rule, courts have awarded mental distress in …

Contracts Without Consent: Exploring A New Basis For Contractual Liability, Omri Ben-Shahar

Articles

This Essay explores an alternative to one of the pillars of contract law, that obligations arise only when there is "mutual assent "--when the parties reach consensus over the terms of the transaction. It explores a principle of "no-retraction," under which each party is obligated to terms it manifested and can retract only with some liability. In contrast to the all-or-nothing nature of the mutual assent regime, where preliminary forms of consent are either full-blown contracts or create no obligation, under the no-retraction regime, obligations emerge gradually, as the positions of the negotiating parties draw closer. Further, the no-retraction liability …

Sherburne V. Glacier Electronic Cooperative, Inc., 03-Ap-15 (Blkft. Tr. Ct. App., Apr. 15, 2003), Blackfeet Appellate Court

Court Decisions

• A Tribal Court jury found unanimously Defendant breached its contract with Plaintiff and committed other wrongs such as defamation. A verdict of $2,157,181.60 was awarded. This judgement was appealed, and affirmed by the Blackfeet Appellate Court. Plaintiffs also obtained an Order of Summary Judgment against Federal Rural Electric Insurance Cooperative and Defendants ordering insurance coverage.  

• Co-op's insurance carrier did not pay the judgment, they then appealed, and the Appeals Court held that the Judgment could not be enforced off the reservation, but enforceable on reservation. Plaintiffs sought to have the judgment be examined for meaning on reservation so they could …

  ---

  Go to article

Correctional Services Corporation V. Malesko: Unmasking The Implied Damage Remedy, Matthew G. Mazefsky

University of Richmond Law Review

No abstract provided.

Nonmaterial Misrepresentation: Damages, Rescission, And The Possibility Of Efficient Fraud, Emily Sherwin

Cornell Law Faculty Publications

Buried in the details of legal doctrine governing misrepresentation is a remedial anomaly that raises some interesting questions about how law should deal with moral wrongs such as fraud. We tend to think of deliberate deception--fraud--as a grave moral wrong. At least, we think of deception as gravely wrong when the deceiver's objective is not to avert harm or spare feelings, but to obtain someone's money or goods. Deception denies the autonomy of the person deceived and undermines the foundation of trust in human interaction. The law, however, does not penalize every instance of fraud. Moreover, the standards governing when …

"Money Can't Buy Me Love": A Contrast Between Damages In Family Law And Contract, Margaret F. Brinig

Journal Articles

As my contribution to this symposium in David's honor, I submit the law and economics section of the damages chapter of our joint enterprise, Understanding Contracts. Because of David's failing health, my own involvement with the publisher never reached contract stage. The chapter concludes with a problem that illustrates some of the intricacies of mixing family law and contract. David and I grappled for some time with the answer to the problem, coming at it from our different points of view. On one occasion, David, with a twinkle, told me there was only one place where I was "absolutely wrong." …

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance Law in the years 2000 and 2001.

Reconsidering The Reliance Interest, Christopher W. Frost

Law Faculty Scholarly Articles

This essay discusses the place of Fuller and Perdue's The Reliance Interest in Contract Damages in the contracts classroom. After first describing my use of The Reliance Interest, I will set out what I consider to be the pedagogical benefits of beginning the course with remedies and the attractiveness of Fuller and Perdue's analytical model in conveying an understanding of the remedial structure. Next, I will discuss the views of critics Craswell, Kelly and Barnes. Finally, I will revisit the place of Fuller and Perdue's work in the contracts course in light of these criticisms.

The Secrecy Interest In Contract Law, Omri Ben-Shahar, Lisa Bernstein

Articles

A long and distinguished line of law-and-economics articles has established that in many circumstances fully compensatory expectation damages are a desirable remedy for breach of contract because they induce both efficient performance and efficient breach. The expectation measure, which seeks to put the breached-against party in the position she would have been in had the contract been performed, has, therefore, rightly been chosen as the dominant contract default rule. It does a far better job of regulating breach-or-perform incentives than its leading competitors-the restitution measure, the reliance measure, and specific performance. This Essay does not directly take issue with the …

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance Law in the years 1999 and 2000.

Bloomer Girl Revisited Or How To Frame An Unmade Picture, Victor P. Goldberg

Faculty Scholarship

Nearly all contracts casebooks feature the saga of Shirley MacLaine's suit against Twentieth Century Fox arising from the cancellation of the proposed film Bloomer Girl. None really get the story right. To be fair, none try. The case is a vehicle for exploring the obligation of the victim of the breach of an employment contract to take alternative employment. If MacLaine refused an offer of alternative employment that was not "different and inferior," her failure to mitigate would mean that the earnings she would have received would be offset against the damages; so, asked the court, was the alternative …

Form Contracts Under Revised Article 2 (Symposium: Consumer Protection And The Uniform Commercial Code), James J. White

Articles

The current draft of section 2-206 in Revised Article 2 of the Uniform Commercial Code ("UCC") entitled "Consumer Contract: Standard Form"1 presents a unique and threatening challenge to the drafters of consumer form contracts. In earlier drafts, one part of the section applied to both to commercial contracts and consumer contracts. It required that "one manifest assent" to any form contract, commercial or consumer, in order for it to be binding.2 Bowing to commercial opposition in the most recent version, the drafters have omitted all reference to commercial contracts. As the section stands, it applies only to consumer contracts.

Consequential Damages In Contracts For The International Sale Of Goods And The Legacy Of Hadley, Arthur Murphey

Law Faculty Scholarship

No abstract provided.

Hiring Ruled Contractual, Bill Gore, Douglas A. Kahn, Stan Shields

Articles

On December 29, 1988, the California Supreme Court decided Foley vs. Interactive Data Corp., perhaps the most eagerly awaited state supreme court decision in years. The Foley ruling, which immediately was hailed as a tremendous victory for California employers, eliminated punitive damage awards for many wrongfully terminated employees. That was good news for the employers. The decision, however, also provided employers with sobering news. Most significantly, the court ruled that employment relationships essentially are contracts, with terms created by the reasonable expectation of the parties. Thus, the majority of California employees now have a right to sue for breach …

The Decline Of The Contract Market Damage Model, James J. White

Articles

In law school every American lawyer learns that the conventional measure of damages for breach of a sales contract is the difference between the contract price and the market price. Even before these rules were embodied in the Uniform Sales Act and the Uniform Commercial Code (UCC), they were a staple of Anglo-American common law. They remain the rules with which a court would determine damage liability not only for the sale of goods, but also for the sale of real estate and securities.