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http://ssrn.com/abstract=1304239
 
 

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In (Partial) Defense of Strict Liability in Contract


Robert E. Scott


Columbia University - Law School

November 2008

Michigan Law Review, Vol. 107, 2009
Columbia Law and Economics Working Paper No. 341

Abstract:     
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 non-performance. 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.

Number of Pages in PDF File: 35

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Date posted: November 22, 2008  

Suggested Citation

Scott, Robert E., In (Partial) Defense of Strict Liability in Contract (November 2008). Michigan Law Review, Vol. 107, 2009; Columbia Law and Economics Working Paper No. 341. Available at SSRN: http://ssrn.com/abstract=1304239

Contact Information

Robert E. Scott (Contact Author)
Columbia University - Law School ( email )
435 West 116th Street
New York, NY 10025
United States
212-854-0072 (Phone)
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