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In defence of breach: a critique of restitution and the performance interest

Campbell, David and Harris, Donald 2002. In defence of breach: a critique of restitution and the performance interest. Legal Studies 22 (2) , pp. 208-227. 10.1111/j.1748-121X.2002.tb00190.x

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The modern argument that the law of obligations should be recast in restitutionary terms appears to have achieved its victory over contract in A-G v Blake. Although ritual obeisance to compensatory damages is made, Blake recognises a general restitutionary remedy for breach of contract the logic of which must be to undermine completely the expectation interest. The general effect of restitutionary rather than expectation-based remedies will be to furnish a greater deterrent against breach, a result welcomed by advocates of the ‘performance interest’. All this would be well were all breaches ‘wrongs’ which should be deterred. This, however, is not so. Breach has a positive, indeed essential, role in the operation of the law of contract as the legal institution regulating economic exchange and pursuit of its general prevention is inconsistent with the operation of a market economy. The victory of restitution therefore is illusory: it is impossible that the position established in Blake can be sustained.

Item Type: Article
Date Type: Publication
Status: Published
Schools: Law
Subjects: K Law > K Law (General)
Publisher: Wiley-Blackwell
ISSN: 0261-3875
Last Modified: 10 Oct 2017 15:35

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