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Fault in American Contract Law

Fault in American Contract Law

Author: Omri Ben-Shahar; Ariel Porat
Publisher: Cambridge University Press
ISBN: 9781107612846
Published In: February 2013
Format: Paperback , 338 pages
Jurisdiction: U.S. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Representing an unprecedented joint effort from top scholars in the field, this volume collects original contributions to examine the fundamental role of 'fault' in contract law. Is it immoral to breach a contract? Should a breaching party be punished more harshly for willful breach? Does it matter if the victim of breach engaged in contributory fault? Is there room for a calculus of fault within the 'efficient breach' framework? For generations, contract liability has been viewed as a no-fault regime, in sharp contrast to tort liability. Is this dichotomy real? Is it justified? How do the American and European traditions compare? In exploring these and related issues, the essays in this volume bring together a variety of outlooks, including economic, psychological, philosophical, and comparative approaches to law.

• Offers a unified way of looking at the innovations in contract law

• A 'dream team' collection of top contributors from the field

• A breakthrough book in applying the 'economic approach to law', also known as 'law-and-economics'

List of Contributors	ix
Preface	xi
Acknowledgment	xxi
I. The Case for Strict Liability	1
1. Richard A. Posner, Let Us Never Blame a Contract Breaker	3
2. Robert E. Scott, In (Partial) Defense of Strict Liability in Contract	20
3. Stefan Grundmann, The Fault Principle as the Chameleon of Contract Law: A Market Function Approach	35
II. The Case for Fault	51
4. George M. Cohen, How Fault Shapes Contract Law	53
5. Eric A. Posner, Fault in Contract Law	69
6. Melvin Aron Eisenberg, The Role of Fault in Contract Law: Unconscionability, Unexpected Circumstances, Interpretation, Mistake, and Nonperformance	82
III. Between Strict Liability and Fault	99
7. Roy Kreitner, Fault at the Contract-Tort Interface	101
8. Richard A. Epstein, The Many Faces of Fault in Contract Law: Or How to Do Economics Right, Without Really Trying	118
9. Martha M. Ertman, The Productive Tension Between Official and Unofficial Stories of Fault in Contract Law	132
IV. Willful Breach	145
10. Richard Craswell, When Is a Willful Breach “Willful”? The Link Between Definitions and Damages	147
11. Steve Thel and Peter Siegelman, Willful Breach: An Efficient Screen for Efficient Breach	161
12. Oren Bar-Gill and Omri Ben-Shahar, An Information Theory of Willful Breach	174
13. Barry E. Adler, Contract Law and the Willfulness Diversion	190
V. Comparative Fault	205
14. Ariel Porat, A Comparative Fault Defense in Contract Law	207
15. Saul Levmore, Stipulated Damages, Superstrict Liability, and Mitigation in Contract Law	223
16. Fabrizio Cafaggi, Creditor’s Fault: In Search of a Comparative Frame	237
VI. The Morality of Breach	255
17. Steven Shavell, Why Breach of Contract May Not Be Immoral Given the Incompleteness of Contracts	257
18. Dori Kimel, Fault and Harm in Breach of Contract	271
19. Tess Wilkinson-Ryan, Fault in Contracts: A Psychological Approach	289
Case Index	305
Subject Index	309