The Productive Tension between Official and Unofficial Stories of Fault in Contract Law

FAULT IN AMERICAN CONTRACT LAW, Omri Ben-Shahar, Ariel Porot, eds., Cambridge University Press, 2010

U of Maryland Legal Studies Research Paper No. 2010-6

18 Pages Posted: 22 Jan 2010  

Martha M. Ertman

University of Maryland Francis King Carey School of Law

Date Written: 2010

Abstract

Officially Contract law ignores fault. However, an unofficial story complements the official one, and explains why fault occasionally slips into contract law through doctrines such as willful breach. This chapter of FAULT IN AMERICAN CONTRACT LAW (Omri Ben-Shahar & Ariel Porot, eds, Cambridge U. Press, forthcoming 2010) argues that the official and unofficial stories operate in productive tension to both facilitate ex ante planning and, when necessary, look backward at reasons for breach to reach a just result. The occasional presence of fault in contract law, in this view, represents merely one more instance of the common doctrinal pattern of general rules tempered by exceptions.

Keywords: fault, contracts, tort, legal theory

Suggested Citation

Ertman, Martha M., The Productive Tension between Official and Unofficial Stories of Fault in Contract Law (2010). FAULT IN AMERICAN CONTRACT LAW, Omri Ben-Shahar, Ariel Porot, eds., Cambridge University Press, 2010; U of Maryland Legal Studies Research Paper No. 2010-6. Available at SSRN: https://ssrn.com/abstract=1539448

Martha M. Ertman (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

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