Sessions Information

  • January 7, 2010
    2:20 pm - 3:20 pm
    Session Type: Extended Program 3
    Session Capacity: N/A
    Hotel: N/A
    Room: Norwich
    Floor: Third Floor

    What right do you “get” by entering a contract? Under limited circumstances, the remedy for a breach of a contractual promise is specific performance; but the default rule is “the benefit of the bargain,” measuring damages by the cost of obtaining a substitute performance in the market to cover for breach of the obligation. Neoclassical theory can be used to argue that efficiency can be maximized by breaching contracts when the breach results in the transfer goods and services to someone who presently values them more than the value attached by the parties to the original contract at the time of contracting. Much “law and (neoclassical) economics” scholarship suggests that contract law is about the value that parties place on performance and that a change in valuing of performance may mean a breach is efficient. By focusing on valuation at the time of breach, this neoclassical approach grounds the remedial value at the time a breaching party decides to breach. Those who object to the theory of efficient breach emphasize the value of “certainty in contracting" or in other words, the value of obligation itself. The value of the obligation includes both positive and normative dimensions, which the neoclassical approach to wealth maximization does not consider. Contract law, by contrast, protects obligations with the positive effects of (1) enhancing trust, confidence, and security in markets; (2) reducing litigation and other transactions costs, and (3) promoting respectful, cooperative, virtuous behavior – all of which contribute to wealth maximization in ways that are distinct from the market-oriented allocational efficiency approach described above. The normative aspects of protecting the bargain can be expressed in many ways. They include the virtues just mentioned and the fact that protection of the obligation is in harmony with the law’s damage theory. This panel will focus on the continuing debate about the purposes of the default rule of damages (as compared to the specific performance alternative) to answer the question of “what is the right created by contracting?

Session Speakers
Fordham University School of Law

Vanderbilt University Law School

Alexander Blewett III School of Law at the University of Montana

Session Fees

Fees information is not available at this time.