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Expectation, Reliance, and the Two Contractual Wrongs
Expectation, Reliance, and the Two Contractual Wrongs CHRISTOPHER T. WONNELL* TABLE OF CONTENTS L INTRODUCTION: THE PLACE OF EXPECTATION AND RELIANCE IN CONTRACTUAL DECISION MAKING ............................................. 54 A. Two ContractualDecisions in Need of Moral Assessment ................54 B. Six Motivesfor Making and Then Breaking a Particular Contract................................................................................................. 60 1. Taking Advantage of NonsimultaneousPerformances ................... 60 2. Making a Threat to Breach in the Face of Situational Monopoly Credible....................................................................... 62 3. Refusing to Carry Through on an Agreed-upon Allocation of Risk ......................................................................... 63 4. Seeking to AppropriateInformation Productively Brought to Bearon the Transactionby the Promisee..................... 66 5. Seeking to Avoid the Contract Because of a Mistake That Makes the ContractMore Burdensome to the PromisorThan Anticipated and Correspondingly More Profitableto the Promisee.................................................. 72 6. Seeking to Avoid the Contract Because of a Mistake That Makes the ContractMore Burdensome to the PromisorThan Anticipated Without Becoming CorrespondinglyMore Profitableto the Promisee........................ 75 * Professor of Law, University of San Diego School of Law. J.D. 1982, University of Michigan; B.A. 1979, Northwestern University. This Article was selected by -
Why Expectation Damages for Breach of Contract Must Be the Norm: a Refutation of the Fuller and Perdue "Three Interests&Quo
Nebraska Law Review Volume 81 | Issue 3 Article 2 2003 Why Expectation Damages for Breach of Contract Must Be the Norm: A Refutation of the Fuller and Perdue "Three Interests" Thesis W. David Slawson University of Southern California Gould School of Law, [email protected] Follow this and additional works at: https://digitalcommons.unl.edu/nlr Recommended Citation W. David Slawson, Why Expectation Damages for Breach of Contract Must Be the Norm: A Refutation of the Fuller and Perdue "Three Interests" Thesis, 81 Neb. L. Rev. (2002) Available at: https://digitalcommons.unl.edu/nlr/vol81/iss3/2 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Nebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. W. David Slawson* Why Expectation Damages for Breach of Contract Must Be the Norm: A Refutation of the Fuller and Perdue "Three Interests" Thesis TABLE OF CONTENTS 840 I. Introduction .......................................... Principal Institutions in a Modern Market II. The 843 Economy in Which Contracts Are Used ................ A. The Institution of the Economic Market: Contracts 843 as Bargains ....................................... Institution of Credit and Finance: Contracts as B. The 845 Property .......................................... 846 the Institutions' Needs ....................... III. Meeting 846 A. Providing a Remedy for Every Breach ............. Contracts Enforceable as Soon as They Are B. Making 847 M ade ............................................. Has Compensating the Injured Party for What He C. 848 ost ............................................... L 848 Damages Under the Expectation Measure ...... 1. 849 2. Damages Under the Reliance Measure ......... 849 a. -
Reliance and Contract Breach
RELIANCE AND CONTRACT BREACH JIM LEITZEL* I INTRODUCTION Actions taken in reliance on a contract, and court protection of such reliance in the event of a breach, have been analyzed from both legal and economic perspectives.' This article compares the legal and economic approaches to contractual reliance and develops a model for examining the protection of expenditures in reasonable reliance. The protection of reasonable reliance potentially involves circular arguments: Courts will protect the amount of reliance in which a reasonable person would engage, but a reasonable person would rely up to the extent that courts will protect.2 This article shows that the protection of reasonable reliance may be well defined, despite the potential circularity. The economic analysis that has been done on contractual reliance has noted that the protection of reliance expenditures, in the event of a breach, may render such expenditures riskless from the viewpoint of the party engaging in the reliance. 3 Since reliance expenditures are inherently risky, 4 their protection may result in overreliance from society's point of view. Overreliance can be avoided if contractual damages are invariant with respect to reliance. 5 Damage "measures can be interpreted as invariant with respect to reliance by limiting recovery on the basis of reliance to costs that are reasonably incurred." 6 This interpretation of damages, however, is subject to the circularity problem inherent in reasonableness standards. This article uses the bilateral contract 7 as the context for the examination of reliance. This article focuses on the different answers provided by the Copyright © 1989 by Law and Contemporary Problems * Visiting Associate Professor of Economics, Duke University. -
Retribution in a Modern Penal Law: the Principle of Aggravated Harm
Buffalo Law Review Volume 25 Number 1 Article 2 10-1-1975 Retribution in a Modern Penal Law: The Principle of Aggravated Harm Ronald J. Allen University at Buffalo School of Law Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview Part of the Criminal Law Commons, Criminology and Criminal Justice Commons, Legal Theory Commons, and the Legislation Commons Recommended Citation Ronald J. Allen, Retribution in a Modern Penal Law: The Principle of Aggravated Harm, 25 Buff. L. Rev. 1 (1975). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol25/iss1/2 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. RETRIBUTION IN A MODERN PENAL LAW: THE PRINCIPLE OF AGGRAVATED HARM RoNALD J. ALLEN* Surely to think of the apt expression of feeling-even if we call it moral indignation rather than revenge-as the ultimate justification of punishment is to subordinate what is primary to what is ancillary. We do not live in society in order to condemn, though we may con- demn in order to live.' Thus the old Gentleman ended his Harangue. The... [Legislature] heard it, and approved the Doctrine and immediately practised the 2 contrary,just as if it had been a common Sermon .... I O nSeptember 1, 1967, in the State of New York, the "first major and comprehensive revision of the Penal Law in the State of New York since 1881"s became effective.4 While much has been written of the revised Penal Law,5 one important aspect of it has received little *Assistant Professor of Law, Faculty of Law and Jurisprudence, State University of New York at Buffalo; B.S., Marshall University, 1970; J.D., University of Michigan, 1973. -
The Purpose of Compensatory Damages in Tort and Fraudulent Misrepresentation
LENS FINAL 12/1/2010 5:47:02 PM Honest Confusion: The Purpose of Compensatory Damages in Tort and Fraudulent Misrepresentation Jill Wieber Lens∗ I. INTRODUCTION Suppose that a plaintiff is injured in a rear-end collision car accident. Even though the rear-end collision was not a dramatic accident, the plaintiff incurred extensive medical expenses because of a preexisting medical condition. Through a negligence claim, the plaintiff can recover compensatory damages based on his medical expenses. But is it fair that the defendant should be liable for all of the damages? It is not as if he rear-ended the plaintiff on purpose. Maybe the fact that defendant’s conduct was not reprehensible should reduce the amount of damages that the plaintiff recovers. Any first-year torts student knows that the defendant’s argument will not succeed. The defendant’s conduct does not control the amount of the plaintiff’s compensatory damages. The damages are based on the plaintiff’s injury because, in tort law, the purpose of compensatory damages is to make the plaintiff whole by putting him in the same position as if the tort had not occurred.1 But there are tort claims where the amount of compensatory damages is not always based on the plaintiff’s injury. Suppose that a defendant fraudulently misrepresents that a car for sale is brand-new. The plaintiff then offers to purchase the car for $10,000. Had the car actually been new, it would have been worth $15,000, but the car was instead worth only $10,000. As they have for a very long time, the majority of jurisdictions would award the plaintiff $5000 in compensatory damages 2 based on the plaintiff’s expected benefit of the bargain. -
Dutch Influences on Law and Governance in New York
DUTCH INFLUENCES 12/12/2018 10:05 AM ARTICLES DUTCH INFLUENCES ON LAW AND GOVERNANCE IN NEW YORK *Albert Rosenblatt When we talk about Dutch influences on New York we might begin with a threshold question: What brought the Dutch here and how did those beginnings transform a wilderness into the greatest commercial center in the world? It began with spices and beaver skins. This is not about what kind of seasoning goes into a great soup, or about European wearing apparel. But spices and beaver hats are a good starting point when we consider how and why settlers came to New York—or more accurately—New Netherland and New Amsterdam.1 They came, about four hundred years ago, and it was the Dutch who brought European culture here.2 I would like to spend some time on these origins and their influence upon us in law and culture. In the 17th century, several European powers, among them England, Spain, and the Netherlands, were competing for commercial markets, including the far-east.3 From New York’s perspective, the pivotal event was Henry Hudson’s voyage, when he sailed from Holland on the Halve Maen, and eventually encountered the river that now bears his name.4 Hudson did not plan to come here.5 He was hired by the Dutch * Hon. Albert Rosenblatt, former Judge of the New York Court of Appeals, is currently teaching at NYU School of Law. 1 See COREY SANDLER, HENRY HUDSON: DREAMS AND OBSESSION 18–19 (2007); ADRIAEN VAN DER DONCK, A DESCRIPTION OF NEW NETHERLAND 140 (Charles T. -
The Phantom Reliance Interest in Tort Damages
The Phantom Reliance interest in Tort Damages MICHAEL B. KELLY* TABLE OF CONTENTS L INTRODUCTION ................................................................................................... 169 IL THE RELIANCE INTEREST IN MISREPRESENTATION .............................................. 171 III. RELIANCE IN PERSONAL INJURY CASES ............................................................... 176 IV. WHAT DOES IT ALL MEAN? ....................................... ... .... .... .... .... ... ..... ... .... .... .. 189 I. INTRODUCTION The reliance interest has fascinated me for some time.' As a measure of damages for breach of contract,2 it seems theoretically unjustified and flawed in its implementation. In theory, it requires compensation for lost opportunities? In practice, such compensation is rarely provided'- * Professor of Law, University of San Diego School of Law. J.D. 1983, B.G.S. 1975, University of Michigan; M.A. 1980, University of Illinois. 1. Michael B. Kelly, The Phanton Reliance Interest in Contract Damages, 1992 WIS. L. REv. 1755. 2. My focus has been on contracts, full-fledged bargains, rather than promissory estoppel or other instances where the reliance interest might be applied. Much of my criticism of the reliance interest has been limited to this context. This Article will expand somewhat the scope of my criticism. 3. L.L. Fuller & William R. Perdue, Jr., The Reliance Interest in Contract Damages: 1, 46 YALE LJ. 52, 55, 60-61 (1936); Mark Pettit, Jr., PrivateAdvantage and Public Power: Reexamining the Expectation and Reliance Interests in Contract Damages, 38 HASTINGS L.J 417,420-21 (1987). unless one counts the expectation interest as a proxy for opportunities lost in reliance on a promise.5 In theory, it justifies recoveries that may exceed expectation.6 Yet, even its progenitors refused to endorse that implication.7 Why, then, does the reliance interest have continuing appeal? One explanation has emerged from discussions with academics: the reliance interest seems apt to some because it resembles tort remedies. -
Accountability of Law Enforcement Officers in the Use of Deadly Force
UCLA National Black Law Journal Title Accountability of Law Enforcement Officers in the use of Deadly Force Permalink https://escholarship.org/uc/item/4vz3x42d Journal National Black Law Journal, 7(2) ISSN 0896-0194 Author Harper, Robert Berkley Publication Date 1981 Peer reviewed eScholarship.org Powered by the California Digital Library University of California ACCOUNTABILITY OF LAW ENFORCEMENT OFFICERS IN THE USE OF DEADLY FORCE Robert Berkley Harper* I. INTRODUCTION The importance of law enforcement officers' in today's society is with- out question. It is their unique responsibility to initiate the criminal justice process, 2 as well as to carry-out a myriad of services that benefit society. The majority of law enforcement officers in this country are professional, dedicated individuals who execute their sworn duties in a responsible and judicious manner. Notwithstanding the officers' worth and credibility, a need for accountability exists, as it does within all organizations and agen- cies in both the public and private sectors of our nation. Accountability is of special importance in situations where society permits a class of people to carry deadly weapons to be used against other citizens, since a potential abuse of this granted authority may result. To minimize this potential, the conditions under which this class may act must be strictly controlled. Ac- countability insures that law enforcement officers and agencies function in an effective manner without abuse to the citizenry.3 In recent years interest and concern has heightened in this country con- cerning the death penalty for convicted murderers, yet there has been little interest surrounding the most frequent means by which the states take a life. -
Reexamining the Expectation and Reliance Interests in Contract Damages Mark Pettit Jr
Hastings Law Journal Volume 38 | Issue 3 Article 2 1-1987 Private Advantage and Public Power: Reexamining the Expectation and Reliance Interests in Contract Damages Mark Pettit Jr. Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Mark Pettit Jr., Private Advantage and Public Power: Reexamining the Expectation and Reliance Interests in Contract Damages, 38 Hastings L.J. 417 (1987). Available at: https://repository.uchastings.edu/hastings_law_journal/vol38/iss3/2 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. Article Private Advantage and Public Power: Reexamining the Expectation and Reliance Interests in Contract Damages by MARK PETTIT, JR.* Introduction Fifty years ago Fuller and Perdue asked why it is that in cases of breach of contract courts usually award "expectation" damages rather than "reliance" damages.I The authors defined these damages measures by their purposes.2 The object of the expectation measure "is to put the plaintiff in as good a position as he would have occupied had the defend- ant performed his promise."'3 The object of the reliance measure, on the other hand, is to "undo the harm" caused by reliance on a promise that was later broken, that is, "to put [the plaintif] in as good a position as he was in before the promise was made."'4 Fuller and Perdue concluded * Professor of Law, Boston University. A.B. -
COLLECTION of EUROPEAN PENAL CODES and the STUDY of COMPARATIVE LAW Marc Ancel T
University of Pennsylvania Law Review FOUNDED 1852 Formerly American Law Register VOL. 106 JANUARY, 1958 No. 3 THE COLLECTION OF EUROPEAN PENAL CODES AND THE STUDY OF COMPARATIVE LAW Marc Ancel t FOREWORD by Louis B. Schwartz t The essay below was written by M. Marc Ancel as an intro- duction to the four-volume compilation of the penal codes currently in force in Europe, edited by himself and Mlle. Yvonne Marx.' Two of the projected four volumes have now appeared, covering in alpha- betical order, the codes of countries from Germany (Allemand) to Greenland. The project is of extraordinary interest and usefulness, since a French version of codes which would otherwise be available only in Swedish, Greek, Russian, etc., makes them much more acces- sible to Americans. But the enterprise would not be as valuable as it is without M. Ancel's analysis of the great tides of thought which, in their ebb and flow, have carried the penal law first in one direction, then almost in the opposite direction. M. Ancel's essay calls for a foreword for several reasons. To begin with, he had a foreword of his own which is here omitted because t Conseiller a la Cour de Cassation (Justice of the French Supreme Court, civil branch). Formerly Editor-in-Chief, International Review of Comparative Law; Sec- retary General, Institute of Comparative Law of the University of Paris; Secretary General, Society of Comparative Legislation. $ Professor of Law, University of Pennsylvania Law School. 1. LEs CODES PENAUX EuRoPEENs (1956) (published by the Centre Frangais de Droit Compare). -
Law and Belief in Three Revolutions
Valparaiso University Law Review Volume 18 Number 3 Spring 1984 pp.569-629 Spring 1984 Law and Belief in Three Revolutions Harold J. Berman Follow this and additional works at: https://scholar.valpo.edu/vulr Part of the Law Commons Recommended Citation Harold J. Berman, Law and Belief in Three Revolutions, 18 Val. U. L. Rev. 569 (1984). Available at: https://scholar.valpo.edu/vulr/vol18/iss3/1 This Seegers Lecture is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at [email protected]. Berman: Law and Belief in Three Revolutions ValparaisoUniversity Law Review Volume 18 Summer 1984 Number 3 LAW AND BELIEF IN THREE REVOLUTIONS* HAROLD J. BERMAN** I. GENERAL INTRODUCTION ........................... 569 II. THE LUTHERAN REFORMATION AND GERMAN LAW . 572 III. THE PURITAN REVOLUTION AND ENGLISH LAW .... 590 IV. THE ENLIGHTENMENT, THE FRENCH REVOLUTION, AND THE NAPOLEONIC CODES .......................... 613 I. GENERAL INTRODUCTION Periodically in the history of the West there have occurred revolutionary changes in the predominant system of beliefs held by the people of a given country or countries. Thus in the early sixteenth century the rise of Protestantism, especially in its Lutheran form, reflected a major shift in the belief system of most persons-not only of Protestants -living in the numerous polities that then made up the German Empire. Some four generations later, in the mid-seventeenth century, various Calvinist and neo-Calvinist beliefs became predomi- nant in English social life, espoused not only by Puritans and other so-called Non-Conformists but also by many who remained loyal to Anglicanism. -
LAW1111 Monash Notes
Introduction to Law Definitions Common law = the law made by judges in the exercise of both common law and equitable jurisdiction Statute law = the law made by the Commonwealth, State and Territory Parliaments Equity = equity in human transactions is that which is founded on justice, honesty and right Parliamentary sovereignty = parliament has the right to make, amend or repeal any law—within the limits of the Constitution = Parliament cannot make a law that a future parliament cannot change = parliament takes priority over the executive and judicial arms of government Responsible government = parliamentary accountability = responsive to public opinion Alternative Dispute Resolution / Non-Adversarial Justice = the ways in which disputes are resolved without litigation = negotiation, arbitration, or mediation Law reports = published volumes of the decisions of courts = widen the base of legal knowledge and to prevent two differing decisions on identical facts The crown = the Queen of the UK Legal aid = legal assistance provided by the government = provide vulnerable and disadvantaged Australians with access to justice Judicial independence = separation of powers doctrine = in interpreting and applying the law, judicial officers act independently and without interference from the parliament or the executive Theories of Law Jurisprudence = the study, knowledge or science of law Natural Law Theory = our laws should be based on morality, goodness, and what is inherently correct Legal Positivism = law is a human creation = based