A Comparative Fault Defense in Contract Law
16 Pages Posted: 7 Jul 2008 Last revised: 9 Jan 2012
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
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