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8 - The Many Faces of Fault in Contract Law: Or How to Do Economics Right, Without Really Trying

Published online by Cambridge University Press:  10 November 2010

Omri Ben-Shahar
Affiliation:
University of Chicago
Ariel Porat
Affiliation:
Tel-Aviv University
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Summary

Modern law often assumes that a uniform cost-benefit formula is the proper way to determine fault in ordinary contract disputes. This chapter disputes that vision by defending the view that different standards of fault are appropriate in different contexts, in line with Roman law classifications adopted in Coggs v. Bernard in 1703. Typically, parties in gratuitous transactions should be held only to the standard of care that they bring to their own affairs. The higher objective standard of ordinary care governs in commercial transactions. That bifurcation leads to efficient searches. Persons who hold themselves out as merchants or experts warrant their ability to achieve uniform standards, while individuals who seek favors from their friends are incentivized to choose them carefully. The basic principle has surprising durability in dealing with agency, medical malpractice, occupier liability, guest statute, and frustration cases. Often the efficient analysis of fault is given only to those who do economics without really trying.

Introduction: From Fault to Negligence – and Back

The concept of fault plays a dominant role not only in contract but also in tort. Often “fault” is the equivalent of the term “negligence.” Commonly, its definition is said to track the Hand formula, which compares the burden of precaution (B) with the expected losses, equal to the probability of loss (P) multiplied by the expected severity of the loss (L). Hand's earlier discussion of custom in The T.J. Hooper is often ignored.

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Publisher: Cambridge University Press
Print publication year: 2010

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References

Posner, Richard A., A Theory of Negligence, 1 J. Legal Stud.29 (1972)CrossRefGoogle Scholar
Hooper, T.J.: The Theory and History of Custom in the Law of Tort, 21 J. Legal Stud.1 (1992)Google Scholar
Thayer, Ezra Ripley, Public Wrong and Private Action, 27 Harv. L. Rev.317, 321–3 (1914)CrossRefGoogle Scholar

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