Abstract

http://ssrn.com/abstract=1559978
 
 

Citations (1)



 


 



Consent to Retaliation: A Civil Recourse Theory of Contractual Liability


Nathan B. Oman


William & Mary Law School

February 26, 2010

William & Mary Law School Research Paper No. 09-42

Abstract:     
In the ancient Near East, contracts were often solemnized by hacking up a goat. The ritual was in effect an enacted penalty clause: "If I breach this contract, let it be done to me as we are doing to the goat." This Article argues that we are not so far removed from our goat-hacking forbearers. Legal scholars have argued that contractual liability is best explained by the morality of promising or the need to create optimal incentives in contractual performance. In contrast, this Article argues for the simpler, rawer claim that contractual liability consists of consent to retaliation in the event of breach. In the ancient ritual with the goat, the retaliation consented to consisted of self-help violence against life and limb. The private law in effect domesticates and civilizes retaliation by replacing private warfare with civil recourse through the courts. It thus facilitates the social cooperation made possible by the ancient threats of retaliation while avoiding the danger of escalation and violence that such private violence presented. This civil recourse theory of contractual liability provides an explanation for a number remedial doctrines that have proven difficult for rival interpretations of contract law to explain, including the penalty clause doctrine, limitations on expectation damages, and the basic private law structure of contractual liability. Finally, this Article responds to some of the most powerful objections that might be made against a civil recourse theory of contractual liability.

Number of Pages in PDF File: 52

Keywords: contract, civil recourse, private law, penalty doctrine, expectation damages, jurisprudence, promise, legal history, goats, anarchy

working papers series


Download This Paper

Date posted: February 27, 2010  

Suggested Citation

Oman, Nathan B., Consent to Retaliation: A Civil Recourse Theory of Contractual Liability (February 26, 2010). William & Mary Law School Research Paper No. 09-42. Available at SSRN: http://ssrn.com/abstract=1559978 or http://dx.doi.org/10.2139/ssrn.1559978

Contact Information

Nathan B. Oman (Contact Author)
William & Mary Law School ( email )
South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States
HOME PAGE: http://nboman.people.wm.edu
Feedback to SSRN


Paper statistics
Abstract Views: 1,538
Downloads: 275
Download Rank: 62,022
Citations:  1

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo7 in 0.265 seconds