Efficient Contract Remedies And the European Unification
This paper applies theoretical results that are derived from financial-economic principles to the issue of efficient contract remedies in view of the European Unification. Common Law favors the ‘expectation damages’ remedy, according to which a party who is aggrieved by a breach of contract expects an ex-post damages award, while this paper demonstrates that if the subject of the contract is traded continuously with observable values, an alternative remedy is equally efficient and just. The alternative remedy is rationalized on an ex-ante basis, and thus, courts intervention in the event of a breach of contract may not be essential. The EU aims to establish a “uniform commercial code superior to all national law.” This goal reflects current cultural differences and lacks of homogeneity, such as expectations and risk preferences across EU Member States. Lacks of homogeneity, can not, however, invalidate the above conclusion, as long as prices are continuously traded and a ‘single price’ regime prevails. Accordingly, this paper predicts that since price differentials across Member States are likely to disappear faster than other non-homogeneous factors, the Court of Justice will show a tendency to rule, utilizing the rationale underlying the ‘ex-ante regime,’ and perhaps, to overturn country-specific rulings by National Courts, which favor the ‘expectation damages regime.’
Risk Sharing through Breach of Contract Remedies
A unitary reinforcing mat for reinforcing the top portion of a self-supporting, substantially horizontal concrete slab which includes a plurality of elongated, longitudinally-extending reinforcing bars arranged in spaced, parallel relation to one another and having their free ends bent downwardly to form support legs which are substantially shorter than the remaining longitudinal portion of the bars; at least two connecting bars extending transversely across the longitudinal bars and fixedly attached thereto at points spaced from the tips of the support legs but immediately adjacent the bends in the longitudinal bars so as to rigidly support the support legs and plastic coverings on the tips of the support legs to prevent rusting of any exposed portion thereof. The mats may be formed as a plurality of joined, single longitudinal bars or as pairs of parallel, longitudinal bars and such pairs and multiple single units may be combined with their longitudinal portions parallel to one another or transversely crossing one another.
Liquidated Damages, Penalties and the Just Compensation Principle: Some Notes on an Enforcement Model and a Theory of Efficient Breach
Professor of Law, University of Virginia School of Law, A.B., 1961, Providence College; Ph.D., 1964, University of Virginia. * Professor of Law, University of Virginia School of Law; B.A., 1965, Oberlin College; J.D., 1968, William & Mary; S.J.D., 1973, University of Michigan. The authors wish to acknowledge the significant contribution of Mr. Charles G. Cofer, B.A., 1974, Duke University; J.D., 1977, University of Virginia School of Law, in the preparation of this article. Mr. Cofer is primarily responsible for the material concerning the historical background of the penalty rule and also assisted in the preparation of the footnotes. 1. See 5 W. S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 293 (1924). Relief from agreed damage provisions was premised on the notion that it was against "conscience" that a person might recover damages exceeding the loss which he suffered. Undoubtedly, one underlying fear was that fraud or other unconscionable conduct was involved. 2. See text accompanying notes 21-28 infra. 3. The rationale for designating a particular liquidated damages provision a penalty has as many formulations as there are treatments of the doctrine. For a representative sampling, see 5 A. CORBIN, CONTRACTS ? 1054 (1964); G. GRISMORE, PRINCIPLES OF THE LAW OF CONTRACTS ? 234 (rev. ed. 1974); C. MCCORMICK, HANDBOOK ON THE LAW OF DAMAGES 599-608 (1935); RESTATEMENT OF CONTRACTS ? 339 (1932); 5 S. WILLISTON, A TREATISE ON THE LAW OF CONTRACTS ? 775A (3d ed. W. Jaeger 1961); Brightman, Liquidated Damages, 25 COLUM. L. REV. 277 (1925). 4. See 5 W. S. HOLDSWORTH, supra note 1, at 292-93. According to Holdsworth, the rules of equity at the mid-point of the fifteenth century were very vague. Combined with the turbulence of the country, these vague rules "gave rise to many interferences of the chancellor on the grounds of equity and conscience." Id. at 278. Such broad interferences may have been prompted by perceived defects in common law rules. Id. at 278-87. Since there were no legal rules available to relieve against unconscionable bargains, equity filled the gap. Id. at 292. 5. It was not uncommon that a debtor "for further security" would bind himself for double the amount of the actual debt. "[H]e might pay the debt, and still the creditor, armed