15 Pages Posted: 25 Dec 2011 Last revised: 18 Feb 2012
Date Written: December 23, 2011
It is commonly held that if getting a contractual remedy was costless and fully compensatory, rescission followed by restitution would not exist as a remedy for breach of contract. This claim, we will demonstrate, is not correct. Rescission and restitution offer more than remedial convenience. Rational parties, we argue, would often desire a right of rescission followed by restitution even if damages were fully compensatory and costless to enforce. The mere presence of a threat to rescind, even if not carried out, exerts an effect on the behavior of parties. Parties can enlist this effect to increase the value of contracting.
Keywords: contracts, rescission, rejection, restitution, optional remedies
JEL Classification: K12
Suggested Citation: Suggested Citation
Brooks, Richard R. W. and Stremitzer, Alexander, Beyond Ex Post Expediency - An Ex Ante View of Rescission and Restitution (December 23, 2011). Washington and Lee Law Review, Vol. 68, No. 3, p. 1171, 2011; Yale Law & Economics Research Paper 443; UCLA School of Law, Law-Econ Research Paper 12-04. Available at SSRN: https://ssrn.com/abstract=1976435