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<\/a>Before performance<\/strong>:<\/p>\n\u201cAnn, a contractor, and Bob, the owner of a certain piece of land, enter a contract for the performance of construction work.\u00a0 Due to geological difficulties, there is a delay in performance that causes Bob substantial losses.\u00a0 It becomes evident, however, that Bob knew about these obstacles at an early stage (although not prior to entering into the contract with Ann).\u00a0 Had he revealed this to Ann in due time, the delay could have been prevented.\u201d<\/p>\n
Response<\/strong>:\u00a0 This is a thorny issue for contract purists, who would insist that Ann had the obligation to review the situation fully before entering into the contract.\u00a0 Yet, Bob had the power to prevent some of the losses, and, indeed, could probably help reduce the overall cost of performance.\u00a0 The law should impose a duty on Bob to cooperate and assist in the performance of the contract.<\/p>\nDuring performance<\/strong>:<\/p>\n\u201cIn the course of a construction project, Charles makes demand for an installment payment.\u00a0 In fact, Charles is not entitled to any payment, because she failed to meet an additional condition stipulated by the contract.\u00a0 Charles is not aware of this additional condition because of an oversight on her part.\u00a0 Debbie refuses to pay, stating that he is not obliged to do so under the contract, but Debbie provides no other explanation.\u00a0 Charles then stops her work, causing loss to Debbie.\u00a0 Only after a month, during which Debbie stubbornly refuses to meet with Charles, does Debbie explain to Charles why he was not entitled to payment.\u201d<\/p>\n
Response<\/strong>:\u00a0 The law should encourage efficiency.\u00a0 Debbie should not be rewarded for her failure to act in a commercially reasonable manner, and the damages should be reduced accordingly.<\/p>\nDuring performance<\/strong>:<\/p>\n\u201cEdward undertakes to construct a building for Fay.\u00a0 During the last stage of performance, Fay gives Edward\u2019s employees confusing instructions on the construction work required.\u00a0 In the end, there is a delay in the completion of performance; moreover, some of the construction work is found to be defective.\u00a0 Had Fay refrained from instructing Edward\u2019s employees, the contract would have been adequately performed.\u201d<\/p>\n
Response<\/strong>:\u00a0 In this hypothetical, the contributing fault of Fay, the non-breaching party, should be considered to reduce liability.\u00a0 Fay caused part of the harm, and Edward should not bear all of the losses.<\/p>\nComment<\/strong>:\u00a0 The hypothetical is not complete, as we need to know the nature of the losses suffered by Fay.<\/p>\nDuring performance<\/strong>:<\/p>\n\u201cIn a home remodeling contract, both George and Harold are aware that there could be delays in completion.\u00a0 Even though Harold is well aware of this risk, he enters into a contract with a contractor to refurnish the house starting on the day set for delivery.\u00a0 He also incurs expenses advertising the house for rent.\u00a0 In the end, George breaches due to late delivery, and Harold suffers losses due to forfeiting the contractor\u2019s deposit and his advertising expenses.\u00a0 These losses would have been prevented had Harold waited to see whether the contract would be adequately performed.\u201d<\/p>\n
Response<\/strong>:\u00a0 It would seem that Harold assumed the risk of loss.\u00a0 However, assumption of the risk is not a traditional contract defense.\u00a0 This is an uncomfortable fit for the law, as Harold caused some of his own losses, yet it appears that George is liable for late delivery.
\n
\nAfter breach<\/strong>:<\/p>\n\u201cIke, a carrier, undertakes to ship a crank shaft from Jane\u2019s mill for repair and to bring it back in one week\u2019s time.\u00a0 Ike instead brings the shaft back after two weeks, which results in high consequential losses to Jane, who could not find a substitute shaft.\u00a0 At the time of contracting, the parties were aware of a small risk that a substitute shaft would not be available.\u00a0 One week later it became clear to Jane, but not to Ike, that this risk had materialized.\u00a0 Had Jane conveyed this information to Ike on time, Ike would have taken costly precautions to ensure that he would return the shaft on time, thus preventing the breach.\u201d<\/p>\n
Response<\/strong>:\u00a0 Historically, the law has favored common carriers, in the sense that the public does not want to pay exorbitant rates for carriage.\u00a0 It seems that the carrier could have take precautions to avoid the loss.\u00a0 However, I want know whether the rate structure reflected the potential loss.<\/p>\nIn other words, Did the price for shipping reflect a one-week delivery time?\u00a0 Ike could have shopped for someone who would have guaranteed delivery.\u00a0 Further, the additional loss was not due to any acts or omissions on the part of Ike, in that Jane simply could not locate the replacement part in a timely manner.<\/p>\n
(Ariel Porat, A Comparative Fault Defense in Contract Law<\/strong>, in Michigan Law Review<\/em> (June 2009), Vol. 107, No. 8, p. 1397.)<\/p>\n","protected":false},"excerpt":{"rendered":"This posting continues the question of whether fault should be considered in evaluating a claim for breach of contract, specifically, whether the courts should weigh the \u201cfault\u201d of the non-breaching party. When would such \u201cfault\u201d by the non-breaching party arise?\u00a0 It would seem that three time frames could be considered: Before (i.e., during the formation […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6,7],"tags":[],"class_list":["post-239","post","type-post","status-publish","format-standard","hentry","category-economics","category-law-reviews"],"_links":{"self":[{"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/posts\/239"}],"collection":[{"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=239"}],"version-history":[{"count":0,"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/posts\/239\/revisions"}],"wp:attachment":[{"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=239"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=239"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=239"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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<\/a>Before performance<\/strong>:<\/p>\n