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Sender:
Allan Axelrod
Date:
Wed, 17 Dec 1997 18:02:35 -0500
Re:
failed contracts and restitution

 

convention, in part influenced by the structure of pleadings, leads us to describe some cases as the avoidance of contracts, and it may be useful to organize avoidance materials, along with those dealing with enforceable contracts, under the heading 'contract law'.

nevertheless, the avoided contract, after the court completes its consideration, represents a fact situation in which contract remedies are not available. However as transfers may have been effected in the failed contract case, some remedy may be appropriate.

why not retain the convention of describing all failed-contract readjustments --- whether arising from a failure of offer, or an avoidance for duress--- as restitutionary?

this could represent a pragmatic judgment that failed-contract cases have more in common with mistake cases than they do with those involving breach, and that the commonality bears examination

[not to say that remediation in breach cases gives expression to entirely different values from those in the failed-contract case]

i assume that we are discussing a question of convention rather than some empirical truth, and i suppose the utility of the convention is the only consideration of interest, aside from the conservative value of changing slowly?


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