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Working paper
Contract Remedies and Inalienable Rights
In: Social philosophy & policy, Band 4, Heft 1, S. 179-202
ISSN: 1471-6437
I. IntroductionTwo kinds of remedies have traditionally been employed for breach of contract: legal relief and equitable relief. Legal relief normally takes the form of money damages. Equitable relief normally consists either of specific performance or an injunction – that is, the party in breach may be ordered to perform an act or to refrain from performing an act. In this article I will use a "consent theory of contract" to assess the choice between money damages and specific performance. According to such a theory, contractual obligation is dependent on more fundamental entitlements of the parties and arises as a result of the parties' consent to transfer alienable rights.My thesis will be that the normal rule favoring money damages should be replaced with one that presumptively favors specific performance unless the parties have consented to money damages instead. The principal obstacle to such an approach is the reluctance of courts to specifically enforce contracts for personal services. The philosophical distinction between alienable and inalienable rights bolsters this historical reticence, since a right to personal services may be seen as inalienable.I will then explain why, if the subject matter of a contract for personal services is properly confined to an alienable right to money damages for failure to perform, specific enforcement of such contracts is no longer problematic. Finally, I shall consider whether the subject matter of contracts for corporate services is properly confined to money damages like contracts for personal services, or whether performance of corporate services can be made the subject of a valid rights transfer and judicially compelled in the same manner as contracts for external resources.
Contract Remedies from the Incentive Perspective
In: The Common Frame of Reference: A View from Law & Economics
Contract Remedies for New Economy Collaborations
In: Forthcoming, 101 Texas Law Review
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NOTES - A Dual Approach to Contract Remedies
In: Yale law & [and] policy review, Band 30, Heft 2, S. 415-461
ISSN: 0740-8048
Risk Sharing Through Breach of Contract Remedies
In: NBER Working Paper No. w0714
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The 'Stiffer' Dilemma: Some Thoughts on Contract, Remedies, and Dispute Resolution
In: University of Toledo Legal Studies Research Paper
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The Moral-Hazard Effect of Liquidated Damages: An Experiment on Contract Remedies
In: Journal of institutional and theoretical economics: JITE, Band 173, Heft 1, S. 110
ISSN: 1614-0559
The Moral-Hazard Effect of Liquidated Damages: An Experiment on Contract Remedies
In: Journal of institutional and theoretical economics: JITE, Band 173, Heft 1, S. 84
ISSN: 1614-0559
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Working paper
Substantive and Jurisdictional Aspects of International Contract Remedies: A Comment on Avery Katz's "Remedies for Breach of Contract Under the CISG"
In: International review of law and economics, Band 25, Heft 3, S. 397-410
ISSN: 0144-8188
Quandary of Smart Contracts and Remedies: The Role of Contract Law and Self-Help Remedies
In: European Review of Private Law, Band 26, Heft 6, S. 805-824
ISSN: 0928-9801
Abstract: Smart contracts provide a quandary for contract law remedies. The self-enforcing nature of smart contracts implies that there is little possibility for breach and thus, little need or opportunity to apply contract law remedies. This article explores if this is really the case. It concludes that contract law remains applicable to smart contracts relating to the enforceability of its terms based on legality, public policy, and contracts policing doctrines. In such cases, post hoc judicial or arbitral claims remain likely and the dispute resolution bodies would seek to apply contract remedies. In order to diminish instances of litigation or arbitration the smart contract should include self-remedying or internal measures (remedies). The article divides internal measures into proactive and reactive measures. These measures should be considered in the drafting of a smart contract in order to diminish resort to contract remedies. In the end, contract law and contract remedies will remain important as default law. In addition, like smart contracts, some of contract law rules are immutable and cannot be made obsolete by blockchain technology.
Optimal Remedies for Bilateral Contracts
In: Journal of Legal Studies, Forthcoming
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The Limits of Contract
In: Exploring Contract Law, Jason Neyers, Richard Bronaugh, and Stephen Pitel, eds., Hart Publishing, 2009
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