18 March 2015

Ching vs. Goldberg: Contracts Scholars' Smack Down

Long ago I posted a short observation about colleague Kenny Ching's piece on that staple of Contracts classes throughout America, Jacob & Youngs v. Kent. In his full-length article, Justice and Harsh Results: Beyond Individualism and Collectivism in Contracts, Kenny concluded that the great Judge Cardozo had misrepresented New York precedent and the facts of the case when concluding that the builders had not materially breached their contract with home-owner Kent. You can download and read Kenny's article by going here.

Kenny has achieved something I've only dreamed of--a rebuttal article. And not only a rebuttal, but one by Victor Goldberg of Columbia Law School. Go here to download Goldberg's piece, Rethinking Jacob & Youngs v. Kent.

Goldberg takes Ching to task for misreading New York precedent. Since I have read none of the the many relevant cases, I am not prepared to express an opinion on whom has the better argument on that score.

Of more importance to me is the question of who should prevail on the facts of the case (at least as reported) and here I am prepared to accede to Goldberg's two-fold legal conclusion: (1) that the contract-law doctrine of material breach is a liability, not a property, rule, (2) the benefit of which can be lost if the breacher acts opportunistically. I'll leave to others the question of whether Goldberg properly applied this conclusion to the facts of Jacob & Youngs v. Kent.

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