| SOURCE | POSITION | THESIS | ARGUMENT STRUCTURE | COMMENTARY |
| Daniel Markovits, “Contract and Collaboration” (2004) 113:7 Yale LJ 1417. | Promise-based (generally Kantian) view cast in terms of the value of relationship and the institution of contracts as promoting community (filling out Raz’s view of promises). | The unifying value between promises and contracts is a “relation of recognition and respect,” (1420) which the author defines as “collaboration.” This is intrinsically valuable and explains the structural similarities/differences between contract and promise; moreover, doctrinal elements of contract law. | This paper looks to make sense of promissory obligations and contractual obligations from the approach of relationships instead of traditionally individualistic approaches. Contract foster mutual recognition and respect which in turn foster community. | This paper is around 100 pages long and touches on the philosophy of promise, contractual doctrines, and a general normative theory. It is a novel relational/collaborative account that dissects the steps in entering, sustaining, and terminating a contract/promise. Still, there remains the question of how efficiency is valued and whether other public values (like substantive equality) fit on the author’s picture. The last section on consideration and expectation remedy sheds light on the values that give texture to contract relations. Notably, the section on expectation damages (1491) is not critical and does not recommend specific performance. Instead, the author argues that expectation damages promotes collaboration because it allows parties to treat each other as ends in themselves (the remedy is respectful rather than instrumental). |
| Markovitz, D., & Schwartz, A. (2012). The expectation remedy and the promissory basis of contract. Suffolk University Law Review, 45(3), 799-826. | Promissory view building on Fried’s trust-based approach. | The disjunctive obligation to trade or transfer (“dual performance”) fits under Fried’s promissory view of contracts if we understand expectation damages as enforcing the disjunctive obligation. | This paper takes up Fried’s promissory view and looks closely at the “shaky” foundations the obligations generated by promises. For Fried, the two foundational pillars are dignity and fidelity. This paper restates the “dual performance” theory of the previous paper (Markovits & Schwartz 2011) and understands Fried’s view on expectation damages in terms of this theory. | There is a remarkable move: if the promise underlying contracts is understood in the disjunctive, then expectation damages is specific performance of one of these options. Thus, we have all the explanatory power/scope of the disjunctive, the promise, and specific performance. The rights-based view might have the same explanatory advantages. Although the starting points are different – e.g., it might start with a person’s relation to property – it can, in principle, capture promissory norms and similarly argue that there is no breach (rather, there is specific performance of one of the disjunctives). |
| Jody S Kraus, “The Correspondence of Contract and Promise” (2009) 109:7 Colurn L Rev 1603. | Promise-based approach defending expectation damages; in-house critique and proposal of an alternative account. | The correspondence of contract law and promissory norms cannot be assessed without first having an account of self-imposed moral responsibility. The most plausible account, coherent with current contract doctrine, is a “personal sovereignty” account. | The starting point is Fried’s view of contracts as legally enforced promises. Promissory norms need some account of self-imposed moral responsibility in order to make sense of the practice of promising. Taking from Feinberg (reminiscent of Rawls’ treatment of Kant), the “personal sovereignty” account is the prime candidate, and it begins with the idea of respecting autonomy as respect for “unfettered voluntary choice” except for “where the interests of others need protection.” This is supposed to make sense of most contract law doctrines, notably areas where there might be divergences between law and morality. | A very unique promise-based view. The author claims that the promissory views (like Shiffrin) have failed to account for the existing default expectation measure. Fried does better, but still lacks a normative framework for promissory morality, and this is the gap the author explores. There is an interesting move of separating promissory morality from rights to remedy, and the author makes a convincing case for why the content of remedial rights needs to be looked at with respect to moral responsibility. |
| Stephen A Smith, “Duties, Liabilities, and Damages” (2012) 125:7 Harv L Rev 1727. | A critique of rights-based and “utility” (mostly economic) approaches to damage awards by showing its inconsistency with the common law. | Damage awards are best understood as the court vindicating a right instead of merely enforcing an existing right. The right-based and utility approaches are therefore wrong about damage awards (vis-à-vis common law) | Damage awards can be understood as enforcing a duty (duty view) or generating a duty from a liability (liability view). The right-based and utility approaches are committed to the duty view, but the common law is not structured this way. Instead of enforcing duties, the law (through damage awards) generates them on the basis of vindicating the rights of the plaintiff. | This article has a very interesting look at how to understand damage awards: they are directed towards courts and tells courts how to decide cases. The suggestion seems to be that duties to pay damages are not understood to be generated at the time of breach, but they are generated by the court’s imposition of the remedy of damages. |
| Aditi Bagchi, “Separating Contract and Promise” (2011) 38:4 Fla St UL Rev 709. | “Separatist” view of promises and contracts only insofar as private promises and contracts. | Private promises and contracts often are in tension because their normative domains are commonly conflated. Contractual obligations are not parasitic of promissory obligations, rather contractual obligations are augmented (i.e., the contract begins “where private promise ends”). | Private promises and contracts share in having a role in moral agency, but private promises function to cultivate personal relationships whereas contracts can be used to pursue our ends in at arms-length with strangers. Consistent with common law, private promises should be legally enforced with great caution, and legal remedies should follow this distinction between promises between intimates and promises between strangers. | A strong argument for the separation of private promises and contracts. This view seems to cohere well with the rights-based accounts and better explains doctrines in common law. |
| Steven Shavell, “Damage Measures for Breach of Contract” (1980) 11:2 The Bell Journal of Economics 446. | Economic analysis defending expectation damages. | Damages measures substitute performance in incompletely specified contracts. | Expectation damage measures are a good default rule to reflect what parties would have, especially with respect to the costs of specificity in contracts. | This seems to be an early version of Shavell’s views on counterfactual agreements (cf. Shavell 2009). This is an economics paper and most of this paper delivers an economic model (46 open propositions) of the efficiency of expectation damages. |
| Gregory Klass, “Three Pictures of Contract: Duty, Power, and Compound Rule” (2008) 83:6 NYUL Rev 1726. | The structure of contracts is such that it is both duty-imposing and power-conferring. | While many laws are straightforwardly power-conferring, some lose are structured to function both as creating power and imposing duties. These are called “compound rules.” | The author carves contract law into power-conferring and duty-imposing rules. The power-conferring view is understood as an act of self-legislation and modifying obligations with others. The duty-imposing view is understood as tracking some other obligation, like keeping promises. Compound rules are a third category, which better explains doctrines in contract law. | This is a dense paper that draws a lot from legal theory and philosophy. However, this is fairly removed from the question of expectation damages and more about the nature of contract law. It was particularly interesting to see Raz’s picture of voluntary obligations applied to this view. The “compound rule” view of contract law, however, is fairly attractive. It seems generally compatible with the Hegelian rights-based approach to contracts. |
| Daniel Markovits & Alan Schwartz, “The Expectation Remedy Revisited” (2012) 98:5 Va L Rev 1093. | A response to Shiffrin (2012) and Klass (2012). | Methodological critiques do not undermine their previous (2011) argument. | Shiffrin and Klass fail to appreciate the methodology: economic models are theoretical and individuals’ preferences can be predictably revealed. | This is convincing and addresses many of the questions which arose in their original paper. However, I wonder if the scope of their methodology is too small to address the questions in this area; on the other hand, perhaps their paper should be read more modestly. |
| Gregory Klass, “To Perform or Pay Damages” (2012) 98:1 Va L Rev 143. | A critique of Markovits & Schwartz (2011). | The “dual-performance hypothesis must be an empirical interpretive claim.” (p 145) | Like Shiffrin, the “is” and “ought” distinction comes to the fore. The author wants some further empirical back to prove that most people prefer dual-performance commitments. The author further suggests that the dual-performance model implies an expansion of punitive damages doctrine. | The author notes a number of limitations to the dual-performance hypothesis, but the author mostly agrees and takes a charitable posture. |
| Richard Craswell, “Contract Law, Default Rules, and the Philosophy of Promising” (1989) 88:3 Mich L Rev 489. | Critique of moral (autonomy based) promise theories. | “My thesis is that such claims on behalf of philosophical theories of promising are greatly exaggerated. In particular, analyses such as Fried’s have little or no relevance to those parts of contract law that govern the proper remedies for breach, the conditions under which the promiser is excused from her duty to perform, or the additional obligations (such as implied warranties) imputed to the promiser as an implicit part of her promise.” (489) | The focus of this article is on promissory accounts of contracts. It begins with the philosophy of promises and further argues that none of these theories can give us the background rules (in contrast to “agreement rules”) in contract. Promises might be helpful for explaining why one ought to follow background rules, it cannot give the background rules themselves. | The author makes an interesting point that autonomy-based theories are content-neutral for filling out default rules, and they need to rely on some other theory (e.g. efficiency) for its default rules. The most illuminating example of autonomy theories deriving default rules in an ad hoc manner is the author’s charge against Fried (517). The author claims that autonomy gives no reasons for favoring the expectation measure over other remedies. |
| Randy E Barnett, “Consent Theory of Contract, A ” (1986) 86:2 Colurn L Rev 269. | A “consent” theory of contract which uses property rights to buttress promises. | “Properly understood, contract law is that part of a system of entitlements that identifies those circumstances in which entitlements are validly transferred from person to person by their consent. Consent is the moral component that distinguishes valid from invalid transfers of alienable rights.” (271) | This article deals with the common question of which commitments contract law should enforce. The criteria of assessment for contract theories is threefold: “(a) the number of known problems the theory handles as well or better than its rivals, (b) the centrality of the problems that the theory handles well, and (c) the promise that the theory offers for solving future problems.” | A fairly influential article that puts forth a promissory (?) account based on one’s power to consent to transfer property (i.e. property rights). This is a very interesting account of promissory obligations that fits in to the broader question of justifying legal force (author cites Fuller and Nozick). |
| Shawn Bayern & Melvin A Eisenberg, “The Expectation Measure and Its Discontents” (2013) 2013:1 Michigan State L Rev 1. | A critique of economic (efficiency) approaches to expectation damages. | Economic models cannot work for remedies because efficiency is too difficult to determine, too difficult to practically administer, and the many models themselves conflict in incommensurable goals. | “This Article has a substantive and a methodological aspect. The substantive aspect analyzes the validity of the alternative models and regimes apart from questions of administrability and institutional issues. The methodological aspect examines the administrability of these models and regimes and the congruence between the models and regimes, on the one hand, and institutional considerations, on the other.” (3) | There is a lot packed into this article, but the main upshot seems to be that limitations lead to the expectation measure being less than fully compensatory. |
| Melvin A Eisenberg, “Actual and Virtual Specific Performance, the Theory of Efficient Breach, and the Indifference Principle in Contract Law” (2005) 93:4 Cal L Rev 975. | An account of why expectation damages are often undercompensatory, while also arguing against efficient breach and for the modification of principles around awarding specific performance. | |A promisee can accomplish virtual specific performance if he can readily find in the market a commodity that he could not in good faith reject as an equivalent of the breached performance, given his demonstrable preferences-by which I mean subjective preferences whose existence can be satisfactorily demonstrated. Cover damages, in turn, should be awarded if a buyer who made a substitute purchase shows that his choice of the covering substitute was made in good faith, given his demonstrable preferences, after he conducted a reasonable search.” | “In Part I, I discuss the principle that the remedial regime for breach of bargain contracts should make promisees indifferent between performance and legal relief. In Part II, I develop the systematic shortfall between expectation damages and the indifference principle. In Part III, I consider the theory of efficient breach. In Parts IV and V, I consider the remedy of specific performance. Finally, in Part VI, I consider the remedy of cover, or virtual specific performance.” (978) | The author makes several interesting claims: first, that efficient breach theories are hardly efficient; second, routine specific performance is not the solution; third, a distinction between “actual” and “virtual” specific performance. The author seems to want to expand notions of fault, the indifference principle, and the practical limitations of expectation damages. The inefficiency point is especially poignant (see starting 1006).
|
Philo-so-fun 