Reconciling Strict Liability with Corrective Justice in Contract Law
Willamette University College of Law
Fordham Law Review Vol. 75, No. 2007
FSU College of Law Public Law Reserch Paper No. 146
Corrective-justice theorists have enjoyed a certain amount of success explaining tort law. Some of these theorists have begun to apply corrective-justice theory to the law of contract, but they have not yet explained how corrective justice, which normally argues that private law is concerned with the correction of wrongdoing done to victims by injurers, can explain a body of law like contract that seems indifferent to wrongdoing. In this paper, I argue that this void is a problem for corrective-justice theories of contract, since although contract compensates for breach it does not do so as a way of responding to breach as a form of moral wrongdoing. Corrective justice can still explain contract law, however, because there is a way of understanding corrective justice as the view that private law compensates for losses that are wrongful even though they may or may not be the result of wrongdoing. Moreover, I argue that by understanding corrective justice in this way we achieve a general theory of contract that is more acceptable from the point of view of political liberalism than the current non-corrective accounts of contract.
Number of Pages in PDF File: 29
Keywords: contract, corrective justice, private law, jurisprudence, fault standard, strict liability, coleman, weinrib, benson, liberalism, rawls, tort
Date posted: February 21, 2005 ; Last revised: May 21, 2008
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