Restitution Discussion Group Archives
| Sender: |
Steve Hedley |
| Date: |
Thu, 18 Dec 1997 00:30:46 |
| Re: |
failed contracts and restitution |
At 18:02 17/12/97
-0500, Allan Axelrod wrote:
convention, in part influenced by the structure of
pleadings, leads us to describe some cases as the avoidance of contracts,
and it may be useful to organize avoidance materials, along with those
dealing with enforceable contracts, under the heading 'contract law'.
nevertheless, the avoided contract, after the court
completes its consideration, represents a fact situation in which contract
remedies are not available. However as transfers may have been effected
in the failed contract case, some remedy may be appropriate. why not retain the convention of describing all failed-contract
readjustments ---whether arising from a failure of offer, or an avoidance
for duress---as restitutionary? If this is the convention (which I would question), it
must be of very recent origin. Mere conservatism would lead us in very
different directions. Consider for example the various uses of the expression
"rescission".
this could represent a pragmatic judgment that failed-contract
cases have more in common with mistake cases than they do with those
involving breach, and that the commonality bears examination [not to say that remediation in breach cases gives
expression to entirely different values from those in the failed-contract
case] It would be interesting to see a reasoned justification
of this position. The remedies on breach are not obviously dissimilar
from the failed-contract remedies; what are the "entirely different values"
at work ? The case for their being fundamentally different is not obvious.
Which is not to say that it could not be made. Over to you
i assume that we are discussing a question of
convention rather than some empirical truth, and i suppose the utility
of the convention is the only consideration of interest, aside from the
conservative value of changing slowly? I assume so too, though I'm not sure that this is the
position of others who have written in this area.
To see these issues as "restitutionary" at all is to
move pretty fast; to assert that there are common principles uniting all
"restitutionary" issues is to move even faster. Which leaves those who
would do so with the burden of establishing the utility of their proposed
new convention ....
Steve Hedley
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FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE
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Christ's College Cambridge CB2 3BU
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