Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History Faculty Scholarship 2008 Wilfulness versus Expectation: A Promise-Based Defense of Wilfull Breach Doctrine Steve Thel Fordham University School of Law,
[email protected] Peter Siegelman University of Connecticut School of Law Follow this and additional works at: http://ir.lawnet.fordham.edu/faculty_scholarship Part of the Contracts Commons, and the Legal Ethics and Professional Responsibility Commons Recommended Citation Steve Thel and Peter Siegelman, Wilfulness versus Expectation: A Promise-Based Defense of Wilfull Breach Doctrine, 107 Mich. L. Rev. 1517 (2008-2009) Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/469 This Article is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact
[email protected]. WILLFULNESS VERSUS EXPECTATION: A PROMISOR-BASED DEFENSE OF WILLFUL BREACH DOCTRINE Steve Thel* Peter Siegelman** Willful breach doctrine should be a major embarrassmentto con- tract law. If the default remedy for breach is expectation damages designed to put the injured promisee in the position she would have been in if the contract had been performed, then the promi- sor's behavior-the reasonfor the breach-looks to be irrelevant in assessing damages. And yet the cases are full of references to "willful" breaches, which seem often to be treated more harshly than ordinary ones based on the promisor's bad/willful conduct.