Fault in American Contract Law

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  • Format: Hardcover
  • Copyright: 2010-08-16
  • Publisher: Cambridge University Press
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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.

Author Biography

Omri Ben-Shahar is the Frank and Bernice Greenberg Professor of Law at the University of Chicago. He has written extensively in the areas of contract law, products liability, and law and economics. Ben-Shahar is the editor of the Journal of Legal Studies and, recently, the book Boilerplate: Foundation of Market Contracts. Ariel Porat is Alain Poher Professor of Law in Tel-Aviv University's Faculty of Law and its former Dean, as well as Fischel-Neil Distinguished Visiting Professor of Law at the University of Chicago. Porat has written numerous articles in the areas of torts and contracts and is the author of the books Contributory Fault in the Law of Contracts and Tort Liability under Uncertainty (with Alex Stein).

Table of Contents

List of Contributorsp. ix
Prefacep. xi
Acknowledgmentp. xxi
The Case for Strict Liability
Let Us Never Blame a Contract Breakerp. 3
In (Partial) Defense of Strict Liability in Contractp. 20
The Fault Principle as the Chameleon of Contract Law: A Market Function Approachp. 35
The Case for Fault
How Fault Shapes Contract Lawp. 53
Fault in Contract Lawp. 69
The Role of Fault in Contract Law: Unconscionability, Unexpected Circumstances, Interpretation, Mistake, and Nonperformancep. 82
Between Strict Liability and Fault
Fault at the Contract-Tort Interfacep. 101
The Many Faces of Fault in Contract Law: Or How to Do Economics Right, Without Really Tryingp. 118
The Productive Tension Between Official and Unofficial Stories of Fault in Contract Lawp. 132
Willful Breach
When Is a Willful Breach "Willful"? The Link Between Definitions and Damagesp. 147
Willful Breach: An Efficient Screen for Efficient Breachp. 161
An Information Theory of Willful Breachp. 174
Contract Law and the Willfulness Diversionp. 190
Comparative Fault
A Comparative Fault Defense in Contract Lawp. 207
Stipulated Damages, Superstrict Liability, and Mitigation in Contract Lawp. 223
Creditor's Fault: In Search of a Comparative Framep. 237
The Morality of Breach
Why Breach of Contract May Not Be Immoral Given the Incompleteness of Contractsp. 257
Fault and Harm in Breach of Contractp. 271
Fault in Contracts: A Psychological Approachp. 289
Case Indexp. 305
Subject Indexp. 309
Table of Contents provided by Ingram. All Rights Reserved.

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