Rethinking Contract Law and Contract Design

Rethinking Contract Law and Contract Design

Rethinking Law series

Victor P. Goldberg

Rethinking Contract Law and Contract Design presents a rich array of ideas that reassess the law and economics of contractual relations. Victor P. Goldberg uses a transactional framework to critically analyse and re-evaluate contract doctrine and specific legal cases. This important work examines particular contractual precepts whilst conducting a detailed exercise in legal archaeology, challenging readers to reconsider significant legal decisions by forensic exploration of records, briefs, and other materials, including the staple cases of textbooks and casebooks.

Chapter 3: Assessing damages: now or then?

Victor P. Goldberg

Subjects: economics and finance, law and economics, law - academic, commercial law, law and economics, law of obligations


This chapter argues that the market-contract price differential should be reckoned at the time of the breach. It examines four cases (two from the United States and one each from England and Israel) that raise the issue in different contexts. Two arise in cases involving anticipatory repudiation. The third was framed by the courts as whether the subject matter was unique which would justify a grant of specific performance. The final case was treated by the Israeli Supreme Court as an unjust enrichment claim for restitution. These both raise the question of whether the plaintiff would have the choice of basing its damage claim on the price at the time of breach or at some future date.

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