Symposium: Fault in Contract Law
It would take more than one symposium to explain the puzzling interface between contract and tort. Any explanation, though, would have to begin with an account of the limited role that fault plays in contract law. This breaks down to separate lines of inquiry: (1) Should lack of fault be a defense against breach? Should the breaching party be able to escape liability if he can show that he worked hard to avoid breach? (2) Should fault be an aggravating factor multiplying damages? Should the breaching party be liable for more than normal damages if breach was “malicious”? (3) Should contract law take the aggrieved party’s fault into account? These three lines of questions—the no-fault defense, the willful-breach multiplier, and contributory fault—are the focus of the present Symposium.