Academic Commons

Articles

In (Partial) Defense of Strict Liability in Contract

Scott, Robert E.

Many scholars believe that notions of fault should and do pervade contract doctrine. Notwithstanding the normative and positive arguments in favor of a fault-based analysis of particular contract doctrines, I argue that contract liability is strict liability at its core. This core regime is based on two key prongs: (1) the promisor is liable to the promisee for breach, and that liability is unaffected by the promisor's exercise of due care or failure to take efficient precautions; and (2) the promisor's liability is unaffected by the fact that the promisee, prior to the breach, has failed to take cost-effective precautions to reduce the consequences of nonperformance. I offer two complementary normative justifications for contract law's stubborn resistance to consider fault in either of these instances. First, I argue that there are unappreciated ways in which courts adherence to strict liability doctrine at the core of contract reduces contracting costs. In addition, I argue that a strict liability core best supports parties efforts to access informal or relational modes of contracting, especially where key information is unverifiable.

Files

  • thumnail for In_Partial_Defense_of_Strict_Liability_in_Contract.pdf In_Partial_Defense_of_Strict_Liability_in_Contract.pdf application/pdf 1.4 MB Download File

Also Published In

Title
Michigan Law Review

More About This Work

Academic Units
Law
Publisher
Michigan Law Review Association
Published Here
December 17, 2015