Edited by Roger Halson and David Campbell
Chapter 8: Two conceptions of the performance interest in contract damages
In recent years a number of distinct ‘substitutionary’ accounts of contract damages have emerged in opposition to the conventional, exclusively ‘loss-centred’ view. It is understandably common to group these accounts together as they share a concern with directly enforcing the promisee’s primary right to performance. This chapter nevertheless argues that it is important to draw a distinction between ‘substitutionary’ accounts that are concerned with placing an objective value on the performance denied by the relevant breach and those that are concerned with awarding the promisee that sum of money necessary to obtain substitute performance from elsewhere. The distinction between these approaches is easily overlooked because of the many cases in which they produce the same quantum. The distinction is nonetheless significant, not only due to the significant differences in quantum that may emerge, but also because of the distinct grounds upon which such awards may legitimately be restricted.
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