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FREEDOM FROM THINGS: A DEFENSE OF THE DISJUNCTIVE OBLIGATION IN CONTRACT LAW

Published online by Cambridge University Press:  07 September 2021

Jennifer Nadler Open the ORCID record for Jennifer Nadler [Opens in a new window]
Jennifer Nadler*
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Osgoode Hall Law School, York University, Toronto, Canada
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Abstract

This article argues that the disjunctive obligation in contract law can be justified on moral grounds. It argues that from a perspective that regards human beings as free agents capable of choice and therefore independent of material objects, the contracting parties must be understood as agreeing to mutually guarantee one another's ownership of a certain value. This guarantee can be fulfilled either by handing over what was promised or by making up the difference between the market value and the contract value of what was promised. The plaintiff's contractual right is therefore a right that the defendant perform or pay. This makes expectation damages intelligible as a vindication of the plaintiff's contractual right. Moreover, the disjunctive obligation can be reconciled with all the doctrines that others take to be decisive arguments against it—with the doctrines of specific performance, inducing breach, impossibility, preexisting duty consideration, and nominal damages.

Type
Research Article
Information
Legal Theory , Volume 27 , Issue 3 , September 2021 , pp. 177 - 206
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press

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Footnotes

*

Thanks to Alan Brudner, Dan Priel, John McCamus, Saptarishi Bandopadhyay, Chris Essert, Nicolas Cornell, Zoë Sinel, Joanna Langille, Jason Neyers, Andrew Botterell, Sabine Tsuruda, Felipe Jiménez, Hanoch Dagan, Avihay Dorfman, the students in the Private Law Theory Workshop at Tel Aviv University, and two anonymous reviewers at Legal Theory for helpful comments, and to Daniel Yoon Sik Choi for research assistance.

References

1. Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 462 (1897).

2. Birmingham, Robert, Breach of Contract, Damage Measures, and Economic Efficiency, 24 Rutgers L. Rev. 273 (1970)Google Scholar; Campbell, David & Harris, Donald, In Defence of Breach: A Critique of Restitution and the Performance Interest, 22 Legal Stud. 208 (2002)CrossRefGoogle Scholar; Posner, Richard, Let Us Never Blame a Contract Breaker, 107 Mich. L. Rev. 1349 (2009)Google Scholar; Markovits, Daniel & Schwartz, Alan, The Myth of Efficient Breach: New Defenses of the Expectation Interest, 97 Va. L. Rev. 1939 (2011)Google Scholar.

3. Buckland, W.W., The Nature of Contractual Obligation, 8 Cambridge L.J. 247 (1944)CrossRefGoogle Scholar; Friedmann, Daniel, The Efficient Breach Fallacy, 18 J. Legal Stud. 1 (1989)CrossRefGoogle Scholar; Friedmann, Daniel, The Performance Interest in Contract Damages, 111 L.Q. Rev. 628 (1995)Google Scholar; Lionel Smith, Understanding Specific Performance, in Comparative Remedies for Breach of Contract 221 (Nili Cohen & Ewan McKendrick eds., 2005); Webb, Charlie, Performance and Compensation: An Analysis of Contract Damages and Contractual Obligation, 26 Oxford J. Legal Stud. 41 (2006)CrossRefGoogle Scholar; Shiffrin, Seana Valentine, The Divergence of Contract and Promise, 120 Harv. L. Rev. 708 (2007)Google Scholar; Ralph Cunnington, The Inadequacy of Damages as a Remedy for Breach of Contract, in Justifying Private Law Remedies 115, 135–136 (Charles E.F. Rickett ed., 2008); Robert Stevens, Damages and the Right to Performance: A Golden Victory or Not?, in Exploring Contract Law 171 (Jason W. Neyers, Richard Bronaugh & Stephen G.A. Pitel eds., 2009); Andrew Gold, A Property Theory of Contract, 103 Nw. U. L. Rev. 1 (2009); John Finnis, Natural Law and Natural Rights (2d ed. 2011), at 322–325; Douglas Baird, Reconstructing Contracts (2013); John Gardner, Torts and Other Wrongs (2019), at 333–340; Peter Benson, Justice in Transactions: A Theory of Contract Law (2019), at 241–274.

For exceptions to this dominant position, see Alan Brudner, The Unity of the Common Law (2d ed. 2013), at 191–193; Priel, Dan, Tort Law for Cynics, 75 Mod. L. Rev. 703, 719 (2014)Google Scholar; Barnett, Katy, Great Expectations: A Dissection of Expectation Damages in Contract in Australia and England, 33 J. Cont. L. 163 (2016)Google Scholar; Waddams, Stephen, Breach of Contract and the Concept of Wrongdoing, 12 Sup. Ct. L. Rev. 1 (2000)Google Scholar, and Stephen Waddams, Sanctity of Contracts in a Secular Age: Equity, Fairness, and Enrichment (2019), at 70–91.

4. Charles Fried, Contract as Promise (2d ed. 2015).

5. Weinrib, Ernest, Punishment and Disgorgement as Contract Remedies, 78 Chicago-Kent L. Rev. 55 (2003)Google Scholar; Ernest Weinrib, The Idea of Private Law (2d ed. 2012), at 139; Arthur Ripstein, Force and Freedom: Kant's Legal and Political Philosophy (2009), at 69; Gold, supra note 3; Hodgson, Louis Philippe, Collective Action and Contract Rights, 17 Legal Theory 209 (2011)CrossRefGoogle Scholar.

6. Peter Benson, Contract as a Transfer of Ownership, 48 Wm. & Mary L. Rev. 1673 (2007); Benson, supra note 3, at 66; Smith, supra note 3, at 221–233.

7. Many of these objections were first raised by Pollock and then elaborated on by others. See 1 Holmes-Pollock Letters: The Correspondence of Mr. Justice Holmes and Sir Frederick Pollock 1874–1932 (Mark De Wolfe Howe ed., 1942), at 3, 80; Buckland, supra note 3; Friedmann, The Efficient Breach Fallacy, supra note 3; Stevens, supra note 3; Finnis, supra note 3, at 323–324; Baird, supra note 3.

8. In this essay I argue that the common law contractual obligation is disjunctive and I offer a justification for that position. Nothing in this essay has any implications for how we should understand the civil law. In light of the fundamental doctrinal differences between the common law and civil law of contracts—for example, differences in relation to intention, consideration, privity, and the presumptive remedy for breach—we have good reason for thinking that the civil law rests on a different normative foundation. See Catherine Valcke, Contractual Interpretation at Common Law and Civil Law: An Exercise in Comparative Rhetoric, in Exploring Contract Law (Jason W. Neyers, Richard Bronaugh & Stephen G.A. Pitel eds., 2009); Catherine Valcke, On Comparing French and English Contract Law: Insights from Social Contract Theory, 4 J. Compar. L. 69 (2009).

9. Robinson v. Harman, (1848) 1 Exch. 850, 855.

10. For arguments against this strategy, see, e.g., Arthur Ripstein, Private Wrongs (2016), at 238–240; Daniel Friedmann, Rights and Remedies, in Comparative Remedies for Breach of Contract 3, 4–8 (Nili Cohen & Ewan McKendrick eds., 2005); Dori Kimel, Remedial Rights and Substantive Rights in Contract Law, 8 Legal Theory 313 (2002).

11. Similar points are made by Allan Farnsworth in Legal Remedies for Breach of Contract, 70 Colum. L. Rev. 1145, 1145–1146 (1970) and by Stephen Smith in Performance, Punishment, and the Nature of Contractual Obligation, 60 Mod. L. Rev. 360, 361–362 (1997).

12. Stephen Smith, Contract Theory (2004), at 155; Farnsworth, supra note 11, at 1145. Of course, it may be a crime if the foreseeable consequence of breach is the endangerment of human life, serious bodily injury, or the destruction of property.

13. Rookes v. Barnard, [1964] AC 1129, 1227 (HL).

14. Restatement (Second) of Contracts §355 (1981). For the English position, see Addis v. Gramophone Co. Ltd., [1909] AC 488 (HL). In Whiten v. Pilot Ins., [2002] 1 S.C.R. 595 (Can.), the Supreme Court of Canada relaxed the ban on punitive damages for breaches of contract that are “high-handed, malicious, arbitrary, or highly reprehensible.” But in the standard case of intentional breach of contract—breaching to pursue a more lucrative opportunity—punitive damages are unavailable in Canada.

15. For the principle that the breaching party can keep the money saved by the breach, see Tito v. Waddell, [1977] 3 All ER 129, 316 (CA). For the principle that disgorgement of profits is not a remedy for breach of contract, see Teacher v. Calder, (1899) 1 F. 39, 50 (HL); Surrey County Council v. Bredero Homes Ltd., [1993] 1 WLR 1361 (CA). However, the statement that disgorgement of profits is not a remedy for breach must now be qualified by the words “in general” because of the House of Lords’ decision in Attorney-General v. Blake, [2001] 1 AC 268 (HL). Even in Blake, it was argued that a disgorgement remedy for breach of contract is appropriate only in exceptional circumstances. The exceptional character of the disgorgement remedy for breach of contract was affirmed in One Step (Support) Ltd. v. Morris-Garner, [2018] 3 All ER 659 (SC). As Markovits and Schwartz point out, in the United States, the critics of the traditional contract remedy are beginning to have an impact on the law. In a departure from the traditional position, the third Restatement of Restitution allows courts to replace the expectation remedy with a disgorgement remedy. See Markovits & Schwartz, supra note 2, at 1942, 1946.

16. Solène Rowan, Remedies for Breach of Contract: A Comparative Analysis of the Protection of Performance (2012), at 25.

17. Hochster v. De La Tour, [1843–1860] All ER 12 (QB).

18. The fact that a court will restrain breach of a restrictive covenant does not constitute a counterexample since restrictive covenants are understood as conferring on the dominant tenement owner a property right, not merely a contractual right. See Tulk v. Moxhay, (1848) 41 ER 1143 (Ch.). Of course, if the contract that is repudiated is one for which specific performance is the proper remedy, then a court may restrain breach. See Mut. Loan Soc'y v. Stower, 15 Ala. App. 293, 73 So. 202 (1916). In Section IV.A, I offer an account of specific performance as an exception to the usual rule of contract damages.

19. A court will substitute damages for an injunction in cases of nuisance if the defendant can satisfy a stringent test. See Shelfer v. City of London Elec. Lighting, [1895] 1 Ch. 287. But this simply proves the rule. As we would expect with a property tort, in nuisance, the plaintiff is presumptively entitled to an injunction and the defendant bears the burden of persuading the court that damages are appropriate. In contract law, the position is reversed: the plaintiff is presumptively entitled to damages and she bears the burden of persuading the court that performance is appropriate.

20. Seana Shiffrin argues that if the contractual obligation was disjunctive, an action for breach would depend on the plaintiff showing that the defendant did not offer to make things right by way of a monetary payment. See Seana Shiffrin, Must I Mean What You Think I Should Have Said?, 98 Va. L. Rev. 159, 166 (2012). Pollock raised this objection as well, arguing that if the obligation is disjunctive, the plaintiff should have to plead not only the defendant's nonperformance, but also his nonpayment of damages. See 2 Holmes-Pollock Letters: The Correspondence of Mr. Justice Holmes and Sir Frederick Pollock 1874–1932 (Mark De Wolfe Howe ed., 1942), at 233. However, the plaintiff is entitled to the court's determination of the amount of money that will put her in the financial position she would have been in had the contract been performed. The plaintiff's cause of action is thus not barred simply because the defendant offered to pay a sum that he or she unilaterally settled on. Any prepayment by the defendant will, however, be set off against the court's damage order.

21. Stevens, supra note 3, at 172; Kimel, supra note 10, at 330.

22. Jack Beatson, Andrew Burrows & John Cartwright, Anson's Law of Contract (31st ed. 2020), at 575.

23. Friedmann, The Performance Interest in Contract Damages, supra note 3, at 629–630; Stephen Smith, Substitutionary Damages, in Justifying Private Law Remedies 93, 105 (Charles E.F. Rickett ed., 2008); Webb, supra note 3, at 50; Kimel, supra note 10, at 330.

24. Friedmann, The Performance Interest in Contract Damages, supra note 3, at 630; Rowan, supra note 16, at 21.

25. A.V. Levontin, Debt and Contract in the Common Law, 1 Israel L. Rev. 60, 61 (1966).

26. Id. at 74.

27. As Holmes wrote, debts were not “raised by a promise,” but “were a ‘duty’ springing from the defendant's receipt of property.” Holmes, supra note 1, at 208; see also A.W. Brian Simpson, A History of the Common Law of Contract: The Rise of the Action of Assumpsit (1975), at 68–69; Allan Farnsworth, The Past of Promise: An Historical Introduction to Contract, 69 Colum. L. Rev. 576, 586 (1969); F.B. Ames, Parol Contracts Prior to Assumpsit, 8 Harv. L. Rev. 252, 260–261 (1894–1895).

28. Samuel Williston, 1 The Law of Contracts §11 (1924); Levontin, supra note 25, at 61.

29. Levontin, supra note 25, at 81.

30. Elliott v. Pybus, (1834) 10 Bing. 512.

31. Treitel also notes that the action for an agreed sum is not regarded as a suit for specific performance or as an equitable remedy. See G.H. Treitel, Remedies for Breach of Contract: A Comparative Account (1988), at 63.

32. Benson, supra note 3, at 266.

33. Id. at 266–268.

34. Section 52 of the English Sale of Goods Act gives courts discretion to award specific performance for breach of an agreement to sell goods that are “specific or ascertained.” But this section has been interpreted so that it does not change the common law position; it has been taken to mean that the court may award specific performance for a good that is specific or ascertained only if the good is unique. See, e.g., Cohen v. Roche, [1927] 1 KB 169; Joseph Chitty & H.G. Beale, Chitty on Contracts §§27-022, 27-023 (2018). For discussion, see Rowan, supra note 16, at 26; see also Semelhago v. Paramadevan, [1996] 2 S.C.R. 415 (Can.).

35. Smith, supra note 11, at 399–400; Cunnington, supra note 3, at 140–141.

36. Smith, supra note 23, at 107–109; Baird, supra note 3, at 55–56; Gardner, supra note 3, at 340.

37. Penner, James, Voluntary Obligations and the Scope of the Law of Contract, 2 Legal Theory 325, 353 (1996)CrossRefGoogle Scholar. Dori Kimel argues that although specific performance ought to be the standard remedy, the harm principle suggests that if the defendant can redress the breach equally well by paying damages, the court should prefer it as the measure that is least intrusive of the defendant's liberty. See Kimel, supra note 10, at 330–332. For arguments along similar lines, see Benson, supra note 3, at 271, and Hodgson, supra note 5, at 224. It is not clear, however, why a court order to “hand over that painting” is more intrusive of liberty than a court order to “hand over that money,” nor is it plausible to suppose that damages are the equivalent of performance even in cases where the promisee's interest is pecuniary, especially if we keep in mind the doctrine of mitigation and the rule in Hadley v. Baxendale.

38. Stephen Smith makes this point as well in supra note 11, at 363.

39. Finnis, supra note 3, at 324; see also Friedmann, The Efficient Breach Fallacy, supra note 3, at 1: “Why not generalize the proposition so that every person has an ‘option’ to transgress another's rights and to violate the law, so long as he is willing to suffer the consequences?” Arthur Ripstein makes a similar point: “If the defendant neither performs nor pays, whatever further results would follow would have to be added as yet another disjunct: ‘Perform or pay or face a contempt sanction.’” See Ripstein, supra note 10, at 239. As I argue in the next paragraph, there is no reason to generalize the idea that the obligation arising from a contract is disjunctive.

40. The mismatch between the supposed right to performance and the standard remedy for breach of contract is not only a problem for theorists who believe that private law instantiates corrective justice and that remedies correct wrongs. Even if one thinks that private law remedies provide civil recourse rather than corrective justice, one should agree that the remedy must be responsive to the right violation. If it is not, in what sense is the remedy a form of recourse and a legitimate substitute for the individual's direct response to wrongdoing? My point is that if the plaintiff's right is to performance, the contract remedy looks unresponsive—even indifferent—to the right violation.

41. Fried, supra note 4; Shiffrin, supra note 3; Peter Linzer, On the Amorality of Contract Remedies—Efficiency, Equity, and the Second Restatement, 81 Colum. L. Rev. 111, 112–113 (1981).

42. But they don't always, as in the case of the often-neglected immediate exchange of material goods.

43. For different accounts of contract law in terms of the morality of right, see, e.g., Brudner, supra note 3, at 161–236; Benson, supra note 3; Weinrib, supra note 5, at 136–140; Ripstein, supra note 5, at 107–144; Barnett, Randy E., A Consent Theory of Contract, 86 Colum. L. Rev. 269 (1986)CrossRefGoogle Scholar; Hodgson, supra note 5.

44. Intention to create legal relations is a requirement of contract formation in England and Canada, but not in the United States. See Restatement (Second) of Contracts §21 (1981).

45. I do not analyze the doctrines of contract formation (offer, acceptance, and consideration) since these doctrines address the question of how a contractual right can be acquired (i.e., only through a voluntary agreement in the context of a bargain), but they leave open the question of whether the right acquired is a right to the promisor's deed, to the material thing, or to the material thing's exchange value. In this section, I argue that the question of whether the right acquired is to the deed, the thing, or the value is settled by a moral conception of the difference between persons and things.

46. See also Weinrib, supra note 5; Ripstein, supra note 5, at 69; Gold, supra note 3; Hodgson, supra note 5.

47. Immanuel Kant, The Metaphysics of Morals §20 (Mary Gregor trans., 1991).

48. Ripstein, supra note 5, at 14.

49. “Objectively considered, a right arising from a contract is never a right over a person, but only a right over something external to a person or something he can alienate, always a right over a thing.” G.W.F. Hegel, The Philosophy of Right (T.M. Knox trans., 1967), at para. 40.

50. Benson, supra note 3; see also Smith, supra note 3, at 221–233.

51. “The thing that is mine is particular in content and therefore not adequate to me and so is separate from me; it is only potentially mine, while I am the potentiality of linking myself to it.” Hegel, supra note 49, addition to para. 15. Similarly, Kant describes objects of choice as those which “could objectively be mine or yours” in supra note 47, at §6.

52. The following account of Hegel's understanding of the relationship between persons, property, and contract relies on Alan Brudner's interpretation and elaboration of Hegel's philosophy of private law in The Unity of the Common Law, supra note 3, at 186–193. It will be clear that this interpretation makes the connection between persons and property very different from the connection argued for by Margaret Radin in Property and Personhood, 34 Stan. L. Rev. 957 (1982). Although Radin takes Hegel's philosophy as her starting point, she reinterprets his account of the conceptual connection between personhood and property as a psychological connection.

53. “What the will has decided to choose it can equally easily renounce.” Hegel, supra note 49, at para. 16.

54. Id. at paras. 41, 42, 44, 45.

55. Id. at para. 74.

56. “Since in real contract each party retains the same property with which he enters the contract and which at the same time he surrenders, what remains identical throughout as the intrinsic property in the contract is distinct from the external things whose owners change when the exchange is made. What remains identical is the value, in respect of which the objects of the contract are equal to one another whatever the qualitative external differences of the things exchanged.” Id. at para. 77.

57. Sometimes Hegel speaks of contract as an exchange of external things (see Hegel, supra note 49, at paras. 75, 76, 80); but as Hegel explains, there is a nonmaterial side to contract, and that side is value, which is what is finally owned. In contract, Hegel writes, “I cease to be an owner and yet remain one, and by virtue of that become one. The latter is the rational side of contract, the universal and enduring [element]. This universal and enduring [element] is value. This value remains with me, only the quality, the character of the possession, changes hands. That I remain an owner of value is the real point of contract.” G.W.F. Hegel, Lectures on the Philosophy of Right, 1819/20, (Alan Brudner trans., University of Toronto Press forthcoming); see also Hegel, supra note 49, at para. 63.

58. It might be objected that the contractual agreement cannot be an agreement about exchange value because the values exchanged may be radically unequal (for example, a peppercorn may be valid consideration for a house). But in contract, the parties agree on the exchange value of their property, but the only judges of the adequacy of the exchange are the parties themselves. Although the market may say otherwise, there is nothing to prevent them from agreeing that, as between themselves, this house has the value of that peppercorn.

59. Above I set out Hegel's view that the right one acquires through contract is a right to exchange value. I argue that the logical consequence of that view is that the contractual obligation is disjunctive. I do not claim, however, that Hegel himself drew that conclusion from his theory of the contractual right. Hegel is ambiguous on this point. Compare, for example, Hegel, supra note 49, para. 77, where Hegel says that the property acquired through contract is distinct from the external things to be exchanged, with paras. 79 and 93, where he says that the contractual duty is to carry out the stipulated terms. Interestingly, though, he sees in para. 93 that the consequence of a duty to carry out stipulated terms is that an intentional failure to do so is a criminal deprivation of property deserving punishment. Yet the common law did not treat it so.

60. Charlie Webb argues that the clearest evidence of the plaintiff's right to performance is the concept of breach: “A breach of contract is the breach of the duty to provide a contracted for performance. It is accordingly premised on there being a duty on the defendant to perform. If there was no such duty there could be no such thing as a breach of contract.” But this assumes what needs to be established. There is nothing in the word “breach” that necessitates a right of performance. “Breach,” in the context of contract law, may mean a factual failure to perform without any necessary implication that this constitutes a legal wrong. See Webb, supra note 3, at 46.

61. It might be wondered whether this account of the right acquired at contract formation can be squared with the availability of damages for loss suffered as a consequence of not being able to put the thing promised to its intended use. Recent accounts of consequential loss have emphasized that consequential loss is recoverable only when the contract is reasonably interpreted to include an implicit assumption of responsibility for such losses. See, e.g., Benson, supra note 3, at 278–279; Adam Kramer, An Agreement-Centered Approach to Remoteness and Contract Damages, in Comparative Remedies for Breach of Contract 249 (Nili Cohen & Ewan McKendrick eds., 2005); Transfield Shipping Inc. v. Mercator Shipping Inc., [2009] 1 AC 61, 69 (HL). So the contract is to be interpreted, not as an exchange of $100 for X but rather $100 for X plus an assumption of responsibility for consequential losses. On the account I have offered, breach requires a payment of the promised exchange value, which in this case is the value of both X and the uses to which it was reasonably to be put.

62. Smith, supra note 11, at 369; Gold, supra note 3, at 54; Buckland, supra note 3; Friedmann, The Performance Interest in Contract Damages, supra note 3, at 629; Seana Shiffrin, Could Breach of Contract Be Immoral?, 107 Mich. L. Rev. 1551, 1565 (2009).

63. See Restatement (Second) of Contracts §359 cmt. a (1981). And see, e.g., Snell v. Mitchell, 65 Me. 48, 50 (1876) (“Neither party to a contract can insist, as a matter of right, upon a decree for its specific performance.”); Stokes v. Moore, 262 Ala. 59, 64 (1955) (“such an agreement [stipulating that breach would give rise to an injunction] would serve to oust the inherent jurisdiction of the court to determine whether an injunction is appropriate”); Fazzio v. Mason, 249 P.3d 390, 397 (Idaho 2011). In England, see, e.g., Quadrant Visual Commc'ns v. Hutchison Tel. (UK) Ltd [1993] BCLC 442, 451, where Stocker LJ said: “Once the court is asked for the equitable remedy of specific performance, its discretion cannot be fettered.”

64. In his critique of Holmes's theory of the disjunctive obligation, Arthur Ripstein writes that “any account of duty on which it turns out that there are no duties must have set up the problem in the wrong way.” Supra note 10, at 238.

65. This objection was raised by Pollock and has been echoed by many others. See Holmes-Pollock Letters, supra note 7, at 3; Friedmann, The Efficient Breach Fallacy, supra note 3, at 18; Perillo, Joseph M., Misreading Oliver Wendell Holmes on Efficient Breach and Tortious Interference, 68 Fordham L. Rev. 1085 (2000)Google Scholar; Stevens, supra note 3; McBride, Nicholas, A Case for Awarding Punitive Damages in Response to Deliberate Breaches of Contract, 24 Anglo-Am. L. Rev. 369, 390 (1995)Google Scholar.

66. Holmes, supra note 1, at 462–463.

67. The foregoing account of specific performance assumes that the difference between the common law and equity is normative and not merely historical or jurisdictional. For an elaboration of this understanding of the difference between law and equity, its connection to Hegel's philosophy of private law, and its implications for the various branches of private law, see Brudner, supra note 3; see also Jennifer Nadler, What Is Distinctive About the Law of Equity?, Oxford J. Legal Stud. gqaa065 (2021), https://doi.org/10.1093/ojls/gqaa065.

For a similar account of specific performance, see Hanoch Dagan & Michael Heller, Specific Performance (Columbia Law & Economics Working Paper No. 631; Columbia Public Law Research Paper No. 14-674, 2020). Although I agree with Dagan and Heller that specific performance is geared to concern for life plans, as is clear from the previous section, I disagree that the common law remedy for breach can be understood in these terms.

68. Treitel, supra note 31, at 63.

69. Waddams, supra note 3, at 182.

70. Stephen Smith takes a similar view of the discretionary nature of specific performance. See Stephen Smith, Form and Substance in Equitable Remedies, in Divergences in Private Law 321, 340 (Andrew Robertson & Michael Tilbury eds., 2016).

71. Patel v. Ali, [1984] 1 All ER 978, 982 (HC) makes clear that the discretion to consider the hardship to the defendant of an order of specific performance allows the court to attend to considerations that are beyond the scope of the contracting parties’ relationship: “I am satisfied that the court's discretion is wide enough, in an otherwise proper case, to refuse specific performance on the ground of hardship subsequent to the contract and not caused by the plaintiff.”

72. Stephen Smith similarly argues that “[t]he rules governing specific relief are not rules about how citizens should treat one another; they are rules about how judges should respond to citizens’ requests for assistance.” Supra note 70, at 341.

73. Id. at 322–323; see also I.C.F. Spry, The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages (2014), at 30–32. As Smith points out in Form and Substance in Equitable Remedies, supra note 70, at 324, this distinction has been abolished in England. What I offer here is a justification for that historical distinction, which, as Smith argues, was abolished because it was thought to be a matter of archaic language having no normative significance.

74. Spry, supra note 73.

75. Smith, supra note 70, at 323.

76. Joseph Story, 2 Commentaries on Equity Jurisprudence: As Administered in England and America §1316 (1836).

77. Smith, supra note 70, at 330.

78. Holmes-Pollock Letters, supra note 7, at 80.

79. Perillo, supra note 65; Friedmann, The Performance Interest in Contract Damages, supra note 3, at 632; McBride, supra note 65, at 389; Baird, supra note 3, at 54–55.

80. In OBG v. Allan, [2008] 1 AC 1 (HL), Lord Hoffmann argued that the tort of inducing breach of contract is based on “the general principle that a person who procures another to commit a wrong incurs liability as an accessory” (para. 3). Others have endorsed this view. See, e.g., Hazel Carty, An Analysis of the Economic Torts (2010), at 61.

81. Robert Stevens, Torts and Rights (2007), at 275–276; Pey-Woan Lee, Inducing Breach of Contract, Conversion and Contract as Property, 29 Oxford J. Legal Stud. 511, 521 (2009).

82. 118 ER 749 (KB 1853).

83. Stevens, supra note 81, at 275–276; Lee, supra note 81, at 521–522.

84. Rookes v. Barnard, [1964] AC 1129 (HL).

85. [1901] AC 495 (HL).

86. There are many other examples in the American jurisprudence on the tort of interference with business relations. For example, in Walker v. Cronin, 107 Mass. 555 (1871), the defendants were found liable for enticing the plaintiff's prospective and at-will employees; so it was wrong for the defendants to induce the employees to refuse to work for the plaintiff—but since the employees were not contractually bound to the plaintiff, their refusal was not independently wrong. See also Azar v. Lehigh Corp., 364 So. 2d 861 (Fla. Dist. Ct. App. 1978); Daugherty v. Kessler, 286 A.2d 95 (Md. 1972).

87. See, e.g., Sayre, Francis Bowes, Inducing Breach of Contract, 36 Harv. L. Rev. 663, 679 (1923)CrossRefGoogle Scholar; Epstein, Richard, Inducement of Breach of Contract as a Problem of Ostensible Ownership, 16 J. Legal Stud. 1 (1987)CrossRefGoogle Scholar; Benson, supra note 3, at 91–94.

88. Temperton v. Russell, [1893] 1 QB 715.

89. For a similar point, see Perillo, supra note 65, at 1100.

90. See, e.g., Arthur Ripstein's discussion of the trespasser who carefully and harmlessly enters your home and naps in your bed. Arthur Ripstein, Beyond the Harm Principle, 34 Phil. & Pub. Affs. 215, 218 (2006).

91. Carty, supra note 80, at 44; Rookes v. Barnard, [1964] AC 1129 (HL); Greig v. Insole, [1978] 3 All ER 449, 485 (Ch.).

92. As Nicolas Cornell shows, this is even more obviously the case in the American version of the tort, which allows for tortious liability even in cases where the defendant interferes with a contractual agreement that is unenforceable, terminable at will, or even merely prospective and that therefore clearly could not be the subject of a property right in the plaintiff. See Nicolas Cornell, Competition Wrongs, 129 Yale L.J. 2032 (2020).

93. Stevens, supra note 3, at 172; see also Buckland, supra note 3, at 248; Benson, supra note 3, at 511.

94. 122 ER 309 (QB 1863).

95. Id. at 312, 314.

96. Id. at 312. Justice Holmes made the same point in Globe Refining Co. v. Landa Cotton Oil Co., 190 U.S. 540, 543–544 (1903): “For instance, in the present case, the defendant's mill and all its oil might have been burned before the time came for delivery. Such a misfortune would not have been an excuse, although probably it would have prevented performance of the contract. If a contract is broken, the measure of damages generally is the same, whatever the cause of the breach.”

97. [1903] 2 KB 740.

98. Grant Smith & Co. and McDonnell Ltd. v. Seattle Construction & Dry Dock Co., [1918–19] All ER 378, 382 (PC).

99. There are, of course, other views of the doctrine. A popular view, expressed in Capital Quality Homes Ltd. v. Colywyn Constr. Ltd., (1975) 9 OR (2d) 617 (ONCA), is that “[t]he theory of the implied term has been replaced by the more realistic view that the court imposes upon the parties the just and reasonable solutions that the new situation demands.” As Langille and Ripstein argue, however, the rejection of the implied term theory in favor of the imposition of an external standard of justice was a reaction to the subjectivity and artificiality of an implied term theory focused on what the parties actually had in their minds. If we ask how a reasonable person would understand the contract, we avoid subjectivity and artificiality while still holding the parties to their agreement. Brian Langille & Arthur Ripstein, Strictly Speaking—It Went Without Saying, 2 Legal Theory 63 (1996).

100. Ligenfelder v. Wainwright Brewery Co., 15 S.W. 844 (1891).

101. Friedmann, The Efficient Breach Fallacy, supra note 3, at 19–20; Baird, supra note 3, at 52.

102. Baird, supra note 3, at 52.

103. Id.

104. There is an additional doctrinal objection to the disjunctive obligation. Courts have found that the executor of a deceased's estate is not obligated to breach the deceased's contract even if breaching and paying damages would be financially better for the estate than performing. Cooper v. Jarman, (1866) 36 LJ Ch. 85; Ahmed Angullia Bin Hadjee Mohamed Salleh Angullia v. Estate & Trust Agencies (1927) Ltd., [1938] 3 All ER 106. It is said that this shows that there is a right to performance, for if there was not, the executor would be bound to breach and pay damages if that was in the best interest of the estate. See Liam Murphy, The Practice of Promise and Contract, in Philosophical Foundations of Contract Law 151, 157 (Gregory Klass, George Letsas & Prince Saprai eds., 2014). But both Cooper and Anguilla were decided on the basis of a conception of the duty of a deceased's representative, not a conception of the promisee's entitlement. In Cooper, Lord Romilly MR argued that it was the representative's duty to carry out the deceased's intentions and that he must perform the contracts that the deceased intended to perform at the time of his death. In Anguilla, Lord Romer argued that the question of whether it is better to perform or breach and pay damages is speculative until a court assesses the damage award (and litigation costs are settled), and so it seems that, ex ante, it is always reasonable for an executor to perform (Anguilla, 3 All ER, at 115). These are judgments that pertain to the law of estates, not contract; they tell us about the executor's obligation as the deceased's representative, but tell us nothing about the contractual rights of the promisee.

105. Benson, supra note 3, at 268.

106. See, e.g., McBride, supra note 65, at 388–389.

107. Restatement (Second) of Contracts §346 illus. 1 (1981).