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Just to indicate some disagreement with what Duncan Sheehan says about Blake and efficient breach and disruption of the business world.

The person who breaches the contract profits. But the other party is only allowed to recover for proven financial losses and not for the unquantifiable waste of management time (causing delays in other parts of the business with a possible knock-on effect to third parties) etc which is caused by having to find a new supplier, or by claiming, quantifying, proving and ultimately enforcing damages claims. I suspect that in the vast majority of cases the aggrieved party will decide that it is a waste of time and further resources to try to enforce the damages claim they have as the result of an "efficient breach".

I do not see the GDP of a country going up if you allow or encourage "efficient breach". I think that business gets more disrupted by what for one party is an efficient and for the other an inefficient breach than by a House of Lords judgment which might cast a doubt on whether a party is always entitled to breach a contract and wait whether the other party is able and willing to claim and prove their financial loss. I have for some time been wondering whether the doctrine of efficient breach is really economic analysis or rather a rationalisation of one peculiar and historically grown characteristic of common law.

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Gerhard Dannemann
University of Oxford

http://iuscomp.org