Let Us Never Blame a Contract Breaker

Authors

Richard A. Posner, University of Chicago Law SchoolFollow

Abstract

Holmes famously proposed a "no fault" theory of contract law: a contract is an option to perform or pay, and a "breach" is therefore not a wrongful act, but merely triggers the duty to pay liquidated or other damages. I elaborate the Holmesian theory, arguing that fault terminology in contract law, such as "good faith," should be given pragmatic economic interpretations, rather than be conceived of in moral terms. I further argue that contract doctrines should normally be alterable only on the basis of empirical investigations.

Recommended Citation

Richard A. Posner, Let Us Never Blame a Contract Breaker, 107 Mich. L. Rev. 1349 (2009).
Available at: https://repository.law.umich.edu/mlr/vol107/iss8/2