Moral Judgment and Moral Heuristics in Breach of Contract

24 Pages Posted: 15 Sep 2006 Last revised: 27 Jan 2009

See all articles by Tess Wilkinson‐Ryan

Tess Wilkinson‐Ryan

University of Pennsylvania Law School

Jonathan Baron

University of Pennsylvania - Department of Psychology


Most people think that breaking a promise is immoral, and that a breach of contract is a kind of broken promise. However, the law does not explicitly recognize the moral context of breach of contract. Using a series of web-based questionnaires, we asked subjects to read breach of contract cases and answer questions about the legal, financial, and moral implications of each case. Our results suggest that people are quite sensitive to the moral dimensions of a breach of contract, especially the perceived intentions of the breacher. In the first study, we framed the motivation for a contractor's breach as either the chance to make more money or the chance to avoid losing money. Subjects were more punitive when the motivation appeared to be greed (breach to gain) than when the motivation appeared to be fear (breach to avoid loss). In the second study, we manipulated the timing of the negotiation over damages, comparing cases in which the promisor asks to negotiate damages before definitively breaching (as in a liquidated damages clause) with cases in which the breach has already occurred. We predicted that once the contract is breached, the moral violation becomes very salient, and we found that subjects were less punitive when they setting damages ex ante. Finally, results from the third study suggest that subjects seemed to believe that intentionally breaking a contractual promise is a punishable moral harm in itself. When presented with identical losses, one from an intentional breach of contract and the other from a negligent tort, subjects were more punitive toward the breacher than the negligent tortfeasor. They treated willful breach as an intentional harm.

Keywords: contracts, breach, moral heuristic, moral intuitions

Suggested Citation

Wilkinson-Ryan, Tess and Baron, Jonathan, Moral Judgment and Moral Heuristics in Breach of Contract. Journal of Empirical Legal Studies, Vol. 6, 2009, U of Penn, Inst for Law & Econ Research Paper No. 09-04, 2nd Annual Conference on Empirical Legal Studies Paper, Available at SSRN:

Tess Wilkinson-Ryan (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Jonathan Baron

University of Pennsylvania - Department of Psychology ( email )

3815 Walnut Street
Philadelphia, PA 19104-6196
United States
215-898-6918 (Phone)


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