The First Thing We Do, Let’s Abolish Contracts

Last year the McGeorge Law Review published my article “Principled Pluralism and Contract Remedies.”  My goal was to justify the regular practice of courts that award damages for breach of an executory contract:  Seller agrees to sell his car to Buyer and Buyer agrees to pay $1000.  On the agreed day, Seller refuses to deliver the car and Buyer of course refuses to pay.  If on that day the car had a market value of $1100, Buyer has a legal claim for $100 against Seller, a claim that will be enforced by the courts. 

A no-brainer, you say?  This result has not always been the case.  Roman law did not generally recognize such claims and likewise the English common law until the late 16th Century.  While all Western legal systems eventually recognized claims for breach where neither party had performed, American legal scholars (not American courts, mind you) have had a hard time explaining why courts should do so.

Well, what about a religious perspective?  Do the Hebrew Scriptures address this issue?  Not specifically.  There simply are no references in the Mosaic covenant to civil liability for breach of a contractual obligation where the non-breaching party hasn’t already paid or performed.  No specific authorization, no law, some (few) say.

Does that mean that modern contract law is unjustified?  That American courts should stop awarding damages for breach of executory contracts?  That my Contracts students should through down their casebooks in righteous anger?  I’ve met only one non-Marxist who has suggested that this might be the appropriate response but anyone who is what one of my colleagues characterizes as a “theonomic antinomian” has some 'splainin' to do.