Article by Jennifer S. Martin
Enforcement of contracts necessarily includes access to the full range of contractual remedies that rely on expectation principles as a theory of recovery. The expectation principle, though, is more “lore” or perhaps part truth in putting a party back in the position they would have been in had the contract been fully performed. The joy of simplicity puts aside the reality that parties are not often made whole; they are not put back to right. Moreover, the result of expectation doctrine is not wholly due to the natural operation of a well-documented set of exceptions to a basic rule. The expectation doctrine functions more like a guidepost than an absolute such that the perception of the operation of contract remedies can be incorrect. This Article provides an overview and analysis of available remedies for breach of a contract using simple services contracts, sales of goods contracts and contracts benefitting the human rights of third parties as illustrations highlighting these perceptions in the case of remedies and supporting the work of Professor Robert Hillman on contract lore. Expectation does not truly restore, but only provides some limited compensation. If we view expectation from a pure lens, it is part lore or myth and part true. Any strict view of expectation’s ability to restore is founded on a misperception of its ability to provide full compensation.
About the Author
Jennifer S. Martin. Professor of Law, St. Thomas University School of Law.
Citation
94 Tul. L. Rev. 961 (2020)