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In (Partial) Defense of Strict Liability in Contract

35 Pages Posted: 22 Nov 2008  

Robert E. Scott

Columbia University - Law School

Date Written: November 2008

Abstract

Many scholars believe that notions of fault should and do pervade contract doctrine. Notwithstanding the normative and positive arguments in favor of a fault-based analysis of particular contract doctrines, I argue that contract liability is strict liability at its core. This core regime is based on two key prongs: (1) the promisor is liable to the promisee for breach, and that liability is unaffected by the promisor's exercise of due care or failure to take efficient precautions; and (2) the promisor's liability is unaffected by the fact that the promisee, prior to the breach, has failed to take cost-effective precautions to reduce the consequences of non-performance. I offer two complementary normative justifications for contract law's stubborn resistance to consider fault in either of these instances. First, I argue that there are unappreciated ways in which courts' adherence to strict liability doctrine at the core of contract reduces contracting costs. In addition, I argue that a strict liability core best supports parties' efforts to access informal or relational modes of contracting, especially where key information is unverifiable.

Suggested Citation

Scott, Robert E., In (Partial) Defense of Strict Liability in Contract (November 2008). Michigan Law Review, Vol. 107, 2009; Columbia Law and Economics Working Paper No. 341. Available at SSRN: https://ssrn.com/abstract=1304239

Robert E. Scott (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States
212-854-0072 (Phone)

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