The Chameleon's Dish: Against The Dual Performance Hypothesis

30 Pages Posted: 26 Jun 2016 Last revised: 21 Jun 2018

See all articles by Adam Rigoni

Adam Rigoni

Arizona State University (ASU) - Barrett, the Honors College

Date Written: June 13, 2018

Abstract

This paper refutes the argument offered by Markovits and Schwartz for the moral permissibility of efficient breach, i.e. their argument for the dual performance hypothesis. It demonstrates that their model of contracting (the M-S model) is a “chameleon,” to use a term from Pfleiderer. Chameleons are theoretically interesting but patently unrealistic models that are used to draw real-world conclusions. The article makes use of results from both experimental and theoretical economics to undermine the assumptions made by the M-S model, showing the need for more care in applying economic models to real world moral and legal issues. In doing so, it also illuminates some of the wide variety of factors that must be considered in arguments for (or against) expectation damages as the default remedy for breach of contract.

Keywords: Contract law, Law and economics, jurisprudence

Suggested Citation

Rigoni, Adam, The Chameleon's Dish: Against The Dual Performance Hypothesis (June 13, 2018). Available at SSRN: https://ssrn.com/abstract=2800446 or http://dx.doi.org/10.2139/ssrn.2800446

Adam Rigoni (Contact Author)

Arizona State University (ASU) - Barrett, the Honors College ( email )

751 East Lemon Mall,
Tempe, AZ 85281
United States

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