Rethinking Contract Law and Contract Design
Show Less

Rethinking Contract Law and Contract Design

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.
Buy Book in Print
Show Summary Details
You do not have access to this content

Chapter 16: Concluding remarks

Victor P. Goldberg


The unifying concept of this book is that an economic understanding of contract design will illuminate both contract doctrine and contract interpretation. With regard to remedies, I have followed Scott and Triantis (2004) in calling into question the primacy of the expectation damages remedy, especially when it is presented as making the victim of a breach indifferent as to whether or not the promisor had performed. I observed the explicit termination clauses, in effect options to abandon, in a number of areas and the methods parties used for pricing these options. In order to adapt to changed circumstances, one party was given the discretion to adapt, but it would be confronted with a price reflecting the counterparty’s reliance. From the behavior of parties with explicit termination clauses, I drew some inferences about the pricing of an implicit termination clause – that is, the remedy for breach. This led to the conclusion that the default remedy of making the “victim” whole was not, in general, what parties would prefer. I recognize that the compensation principle is so well entrenched that a full frontal assault will be futile. But, we can at least nibble away at the corners of the doctrine. I suggested that one of the areas that would benefit from rethinking is the lost-volume-seller remedy. Unfortunately, there is a statute (§_2-708 (2)) and an Official Comment which put some constraints on courts. I believe the statute gives some leeway for creative interpretation.

You are not authenticated to view the full text of this chapter or article.

Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.

Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.

Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.

Further information

or login to access all content.