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18 - Fault and Harm in Breach of Contract

Published online by Cambridge University Press:  10 November 2010

Omri Ben-Shahar
Affiliation:
University of Chicago
Ariel Porat
Affiliation:
Tel-Aviv University
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Summary

This chapter offers a defense of the common law's approach to considerations relating to moral culpability in breach of contract – an approach by which such considerations tend to play a fairly limited role in devising the appropriate response to a breach. Calls for assigning fault a more central role in the law of contract are often inspired by the thought that it ought to reflect more systematically and more directly the morality of promise. The chapter seeks to expose this theoretical stance as misguided, instead locating the common law's approach to fault in broader ideas underpinning the legal and the political culture of which the common law is a product, and in particular the harm principle. The chapter concludes with an outline of what makes a law of contract moral, taking issue with the view that a moral law of contract is one that sets out to enforce morality.

Introduction

The key to the interest in the philosophical foundations of contract – inconstant as it has been in recent decades – lies, I believe, in the relationship between contract and promise. That contract is the legal equivalent of an institution with a full and independent existence outside the law, though perhaps not a source of direct interest in its doctrinal dimensions, means that this branch of the law furnishes its students with a unique opportunity to investigate a certain dimension of the relationship between law and morality.

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Chapter
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Publisher: Cambridge University Press
Print publication year: 2010

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References

Raz's, Joseph critique of MacCormick's view (Voluntary Obligations 46 Proc. Aristotelian Soc.79 (1972))Google Scholar
Atiyah's, (Book Review: Promises in Morality and Law 95 Harv. L.R.916 (1982))Google Scholar

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