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A Note on the Equivalence between Contractual and Tort Liability

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  • Germán Coloma
  • Sergio Pernice

Abstract

The aim of this paper is to conciliate some conclusions of the economic theories of breach of contract and tort law. The main result is that the two efficient alternatives that tort law identifies (negligence rule and strict liability with a defense of contributory negligence) are mirrored by two efficient ways of defining contract damages. The first consists of forcing the debtor to pay expectation damages but limiting the level of the creditor’s reliance (rule of damage mitigation). The second consists of obliging the debtor to pay expectation damages only when his breach of contract implies negligence, otherwise using restitution remedies (doctrines of impracticability and force majeure).

Suggested Citation

  • Germán Coloma & Sergio Pernice, 2000. "A Note on the Equivalence between Contractual and Tort Liability," CEMA Working Papers: Serie Documentos de Trabajo. 179, Universidad del CEMA.
  • Handle: RePEc:cem:doctra:179
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    File URL: http://www.ucema.edu.ar/publicaciones/download/documentos/179.pdf
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    References listed on IDEAS

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    1. Steven Shavell, 1980. "Damage Measures for Breach of Contract," Bell Journal of Economics, The RAND Corporation, vol. 11(2), pages 466-490, Autumn.
    2. Sykes, Alan O, 1990. "The Doctrine of Commercial Impracticability in a Second-Best World," The Journal of Legal Studies, University of Chicago Press, vol. 19(1), pages 43-94, January.
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