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The Future of Fault in Contract Law

24 Pages Posted: 2 Aug 2012 Last revised: 10 Jul 2015

Robert A. Hillman

Cornell Law School

Date Written: August 1, 2012


According to judicial opinions, the Restatement (Second) of Contracts, and some analysts, the reasons for failing to perform a contract, whether willful, negligent, or unavoidable, have little or no bearing in determining contract liability. Contract liability is said to be “strict,” meaning that the reasons for nonperformance are irrelevant in determining the injured party’s rights. In this Article, I argue that the reasons for failing to perform, which focus on whether non-performance is the promisor’s fault, are crucially important in the resolution of many, perhaps most disputes under contract law.

Keywords: contract, fault, strict liability

Suggested Citation

Hillman, Robert A., The Future of Fault in Contract Law (August 1, 2012). Cornell Legal Studies Research Paper No. 12-34. Available at SSRN: or

Robert A. Hillman (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States
607-255-4902 (Phone)
607-255-7193 (Fax)

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