Author ORCID Identifier
Jennifer Nadler: 0000-0003-1969-2863
Legal Theory, 27(3), 177-206. doi:10.1017/S1352325221000161
This article argues that the disjunctive obligation in contract law can be justified on moral grounds. It argues that from a perspective that regards human beings as free agents capable of choice and therefore independent of material objects, the contracting parties must be understood as agreeing to mutually guarantee one another's ownership of a certain value. This guarantee can be fulfilled either by handing over what was promised or by making up the difference between the market value and the contract value of what was promised. The plaintiff's contractual right is therefore a right that the defendant perform or pay. This makes expectation damages intelligible as a vindication of the plaintiff's contractual right. Moreover, the disjunctive obligation can be reconciled with all the doctrines that others take to be decisive arguments against it—with the doctrines of specific performance, inducing breach, impossibility, preexisting duty consideration, and nominal damages.
Nadler, Jennifer, "Freedom from Things: A Defense of the Disjunctive Obligation in Contract Law" (2021). Articles & Book Chapters. 3040.
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