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Sender:
Steve Hedley
Date:
Thu, 18 Dec 1997 00:30:46
Re:
failed contracts and restitution

 

At 18:02 17/12/97 -0500, Allan Axelrod wrote:

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?

If this is the convention (which I would question), it must be of very recent origin. Mere conservatism would lead us in very different directions. Consider for example the various uses of the expression "rescission".

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]

It would be interesting to see a reasoned justification of this position. The remedies on breach are not obviously dissimilar from the failed-contract remedies; what are the "entirely different values" at work ? The case for their being fundamentally different is not obvious. Which is not to say that it could not be made. Over to you

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?

I assume so too, though I'm not sure that this is the position of others who have written in this area.

To see these issues as "restitutionary" at all is to move pretty fast; to assert that there are common principles uniting all "restitutionary" issues is to move even faster. Which leaves those who would do so with the burden of establishing the utility of their proposed new convention ....

 

Steve Hedley

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