Fault in American Contract Law

Representing an unprecedented effort from top scholars, this volume collects original contributions to examine the fundamental role of 'fault' in contract law.

Omri Ben-Shahar (Edited by), Ariel Porat (Edited by)

9781107612846, Cambridge University Press

Paperback / softback, published 14 February 2013

338 pages
23.4 x 15.6 x 1.8 cm, 0.48 kg

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.

Part I. The Case for Strict Liability: 1. Let us never blame a contract breaker Richard A. Posner
2. In (partial) defense of strict liability in contract Robert E. Scott
3. The fault principle as the chameleon of contract law: a market function approach Stefan Grundmann
Part II. The Case for Fault: 4. How fault shapes contract law George M. Cohen
5. Fault in contract law Eric A. Posner
6. The role of fault in contract law: unconscionability, unexpected circumstances, interpretation, mistake, and nonperformance Melvin Aron Eisenberg
Part III. Between Strict Liability and Fault: 7. Fault at the contract-tort interface Roy Kreitner
8. The many faces of fault in contract law: or how to do economics right, without really trying Richard A. Epstein
9. The productive tension between official and unofficial stories of fault in contract law Martha M. Ertman
Part IV. Willful Breach: 10. When is a willful breach 'willful'? The link between definitions and damages Richard Craswell
11. Willful breach: an efficient screen for efficient breach Peter Siegelman and Steve Thel
12. An information theory of willful breach Oren Bar-Gill and Omri Ben-Shahar
13. Contract law and the willfulness diversion Barry E. Adler
Part V. Comparative Fault: 14. A comparative fault defense in contract law Ariel Porat
15. Stipulated damages, super-strict liability, and mitigation in contract law Saul Levmore
16. Creditor's fault: in search of a comparative frame Fabrizio Caffagi
Part VI. The Morality of Breach: 17. Why breach of contract may not be immoral given the incompleteness of contracts Steven Shavell
18. Fault and harm in breach of contract Dori Kimel
19. Fault in contracts, a psychological approach Tess Wilkinson-Ryan.

Subject Areas: Contract law [LNCJ], Private / Civil law: general works [LNB], Laws of Specific jurisdictions [LN]