Book contents
- Frontmatter
- Contents
- List of Contributors
- Preface
- Acknowledgment
- I THE CASE FOR STRICT LIABILITY
- II THE CASE FOR FAULT
- III BETWEEN STRICT LIABILITY AND FAULT
- IV WILLFUL BREACH
- V COMPARATIVE FAULT
- 14 A Comparative Fault Defense in Contract Law
- 15 Stipulated Damages, Superstrict Liability, and Mitigation in Contract Law
- 16 Creditor's Fault: In Search of a Comparative Frame
- VI THE MORALITY OF BREACH
- Case Index
- Subject Index
15 - Stipulated Damages, Superstrict Liability, and Mitigation in Contract Law
Published online by Cambridge University Press: 10 November 2010
- Frontmatter
- Contents
- List of Contributors
- Preface
- Acknowledgment
- I THE CASE FOR STRICT LIABILITY
- II THE CASE FOR FAULT
- III BETWEEN STRICT LIABILITY AND FAULT
- IV WILLFUL BREACH
- V COMPARATIVE FAULT
- 14 A Comparative Fault Defense in Contract Law
- 15 Stipulated Damages, Superstrict Liability, and Mitigation in Contract Law
- 16 Creditor's Fault: In Search of a Comparative Frame
- VI THE MORALITY OF BREACH
- Case Index
- Subject Index
Summary
The remedy of expectancy damages in contract law is conventionally described as strict liability for breach. Parties sometimes stipulate damages in advance, and may agree that the damages they stipulate shall be the exclusive remedy for breach. This chapter advances two claims. First, that the familiar expectation remedy is correctly understood to involve elements of fault. There is litigation over the question of fault with respect to the mitigation of damages. Stipulation, on the other hand, makes contract liability stricter because it takes the mitigation question away from courts. Second, while law is generally described as being suspicious of, or even hostile to, stipulation, in fact, law encourages stipulation. It does this by sometimes declining to award expectancy damages, often in the very situations where stipulation seems sensible, and also by providing expectancy damages where the award of stipulated damages is regarded as a penalty. These two claims illuminate cases on such diverse matters as residential leases, construction contracts, product warranties, service contracts with liability waivers, and no-show customers and their service providers.
Introduction
The remedy of expectancy damages plays a central role in the conventional statement of American contract law. Specific performance is a smaller but well-recognized feature, and it is prominent in some subsets of contract law, such as those concerned with unique goods and land transfers. Both rules are usefully described as providing strict liability, though occasional academic campaigns draw attention to the ways in which fault permeates contract law.
- Type
- Chapter
- Information
- Fault in American Contract Law , pp. 223 - 236Publisher: Cambridge University PressPrint publication year: 2010