A Comparative Fault Defense in Contract Law

16 Pages Posted: 7 Jul 2008 Last revised: 9 Jan 2012

See all articles by Ariel Porat

Ariel Porat

Tel Aviv University; University of Chicago - Law School

Date Written: January 8, 2012


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

Suggested Citation

Porat, Ariel, A Comparative Fault Defense in Contract Law (January 8, 2012). Michigan Law Review, Vol. 107, p. 1397, 2009, U of Chicago Law & Economics, Olin Working Paper No. 436, Available at SSRN: https://ssrn.com/abstract=1156399

Ariel Porat (Contact Author)

Tel Aviv University ( email )

Ramat Aviv
Tel Aviv, 69978
972-3-6408283 (Phone)
972-3-6407260 (Fax)

HOME PAGE: http://english.tau.ac.il/profile/porata

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

HOME PAGE: http://www.law.uchicago.edu/faculty/porat

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