Covid, Contracts, and Colleges
71 Pages Posted: 31 Mar 2023
Date Written: March 28, 2023
This Article examines the legal issues underlying hundreds of lawsuits, claiming unjust enrichment or breach of contract, brought by students who paid full tuition to institutions of higher education but who, because of COVID, did not receive the full complement of in-person instruction.
The Article advances three fundamental conclusions. First, the law governing liability favors students, especially because of the starkness of the breach or deprivation visited upon them. Second, the law governing damages favors the educational institutions, especially because COVID caused colleges to unbundle certain aspects of their services that they have historically only provided simultaneously with high-quality faculty and plentiful opportunities for students to interact intellectually. The recency of that unbundling hinders a market-oriented evaluation of the component values and thus reduces the chances of an award of damages to the students. Third, this rapid unbundling reveals a difficulty—which can extend beyond the specifics of colleges offering education in a time of COVID—in the law’s pervasive use of market-oriented measures of damages even when change in the marketplace is rapid and improvisational.
The Article hopes to bring clarity to an area where courts have not ruled consistently and no trials have occurred, and where scholars have examined the effects of COVID on contracts only at a much more general level.
Keywords: contracts, breach of contract, covid, colleges, universities, restitution, unjust enrichment, impossibility
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