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This chapter explains how abusive boilerplate could either be treated as a defective product, or else regulated under a new tort of intentional deprivation of basic legal rights. It argues that we should put boilerplate rights deletion schemes into the legal category—tort law—in which we can actually consider them as products, instead of considering them one at a time as a contract between two individuals. It also highlights boundary the fuzzy and shifting boundary between contracts and torts by focusing on doctrinal border areas such as fraud or misrepresentation, bad faith breach of contract, and warranty. A case study involving implied warranty of habitability in residential leases is presented. The chapter concludes with a comparison of tort and contract remedies, along with the common-law economic loss doctrine.

The Introduction defines the term ‘performance’ and sets outs the three objectives of the monograph, namely to assess the extent to which the performance interest is protected in England, to explain the reasons why this level of protection is provided, and to consider how English law might evolve to enhance the protection of the performance interest in the future. It also explains why the three objectives of the book are all approached through comparative analysis of French law. The Introduction provides an outline of the arguments of the monograph. The book submits that the protection afforded to the performance interest in England is equivocal. This is evident from the exceptionality of some key specific remedies (Chapter I), the relatively unfettered availability of termination (Chapter II) and the restrictions on compensatory damages (Chapter III). Notwithstanding these restrictions, the book shows that English courts have lately exhibited willingness to reinforce the protection of the performance interest and considers how remedies could evolve in the future (Chapters IV and V).

Contract remedies may define the normative commitments (or lack thereof) of contract. It is at least true that how the law responds to breach says a good deal about contract. This chapter discusses the measure and form of damages, the calculation of consequential damages, and mitigation of damages from the perspective of competing theories of deontology and consequentialism to reach conclusions about the normativity of the doctrine. It also considers the fit between damages for breach of a bargain and damages for upsetting the reasonable expectation of a promisee on the basis of estoppel. That contrast also suggests a good deal about the normative claims, such as they are, of the doctrine. The damages law has presented perhaps the greatest challenge to those who would formulate contract on the head of a pin.

This chapter presents an overview of the behavioral analysis of contract law. It first presents a behavioral theory of contracts that highlights the role of values such as promise-keeping and trust, and examines how the role played by those values depends on whether the contract is a product of negotiation or not (i.e., a standard-form contract). The chapter then discusses specific issues in contract law from a behavioral viewpoint—including pre-contractual negotiations (with special emphasis on the role of default rules and other reference points), contract formation, contract interpretation and supplementation, performance, and remedies for breach of contract, including agreed-upon remedies.

This chapter introduces the project: its genesis and objectives, the difficulties encountered, the methodology adopted, as well as the terms of reference given to all contributors. It explains the comparative law dimensions of the project, the thematic focal points of each stage of the project, and the basis on which the Asian jurisdictions featured in this book were selected. It introduces the underlying research question and overarching theme of the book: to what extent do the contract laws of these Asian jurisdictions protect the performance interests of contracting parties when remedies are awarded against a debtor who has not performed, or has defectively performed, his or her obligations under the contract? It also provides a summary of each of the chapters and highlights interesting insights from each chapter.

This chapter argues that loss aversion can explain basic features of entire legal fields, the relative importance of different fields, and certain specific doctrines. It demonstrates this by exploring, among other things, the different roles that tort law and the law of unjust enrichment play in all legal systems; the fundamentally different treatment of takings and givings in constitutional property law; the defense of necessity in criminal law; the much greater constitutional protection afforded to civil and political rights compared to social and economic ones; and the difference between not-hiring and firing in affirmative-action plans. It further analyzes the distinction between expelling asylum seekers and denying them entry; the asymmetry between tax exemptions and spending; the burden of proof in civil litigation; and preliminary injunctions.