A Comparative Fault Defense in Contract Law

Abstract

This Article calls for the recognition of a comparative fault defense in contract law. Part I sets the framework for this defense and suggests the situations in which it should apply. These situations are sorted under two headings: cases of non-cooperation and over-reliance. Part II unfolds the main argument for recognizing the defense. It recommends applying the defense only in cases where cooperation or avoidance of over-reliance is low-cost.

Keywords: comparative fault, good faith in performance, mitigation of damages, cooperation, over-reliance