The Phantom Reliant Interest in Tort Damages

29 Pages Posted: 24 Oct 2000

See all articles by Michael B. Kelly

Michael B. Kelly

University of San Diego School of Law

Abstract

The theoretical incoherence of the reliance interest as a remedy for breach of contract has been clear for some time. Yet authors continue to exhibit considerable attraction to the reliance interest. This article seeks to probe one possible reason for this appeal: the superficial similarity between the reliance interest and tort remedies. The analysis reveals that tort law generally follows expectation principles, not reliance principles. In instances where expectation and reliance differ (such as misrepresentation), courts generally opt for expectation measures (the benefit of the bargain rule). In many other torts, the expectation interest and the reliance interest seem indistinguishable. The plaintiff's position if the wrong had not occurred does not divide readily into alternative questions about the position if the promise had been kept and the position if the promise had not been made. To the extent any division is possible, the reliance interest seems to seek the plaintiff's position if the duty had not existed ? analogous to the plaintiff's position if the promise had not been made ? a locution completely unknown to tort law. Tort's normal remedy ? the plaintiff's position if the duty had not been breached ? is more analogous to the plaintiff's position if the promise had been performed, the expectation interest. Thus, any desire to make contract remedies more closely analogous to tort remedies should produce support for the expectation interest, not the reliance interest.

Suggested Citation

Kelly, Michael B., The Phantom Reliant Interest in Tort Damages. U San Diego Law and Economics Research Paper No. 05. Available at SSRN: https://ssrn.com/abstract=245562 or http://dx.doi.org/10.2139/ssrn.245562

Michael B. Kelly (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
(619) 260-2333 (Phone)
(619) 260-4728 (Fax)

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