Research Handbook on Remedies in Private Law
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Research Handbook on Remedies in Private Law

Edited by Roger Halson and David Campbell

This Research Handbook comprehensively and authoritatively reviews the contemporary challenges in research regarding remedies in private law. The Research Handbook on Remedies in Private Law focuses on the most important issues throughout contract, equity, restitution and tort law as they have arisen in the major common law jurisdictions, touching upon those of other jurisdictions where pertinent.
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Chapter 5: Remedies and reality in the law of contract

Catherine Mitchell

Abstract

This chapter explores what we know, and what it might be useful to know, about the connection between contract law remedies for breach and commercial reality. It considers three different perspectives on commercial reality: empirical studies of contract; the relational theory of contract; contract law remedies as default rules. The chapter draws out the insights that each perspective presents on legal remedies for breach, highlights the areas where contract remedies appear to deviate from these conceptions of commercial reality, and notes potential areas for further research. One of these areas for future research is whether, in the light of the increasing use of contracts to create essentially private legal systems with bespoke and complex remedial regimes which courts are willing to enforce, the legal default remedies for breach of contract are becoming obsolete.

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