The Morality of Contract and Moral Culpability in Breach

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Abstract:

This article offers a defence of the common law's approach to considerations relating to moral culpability in breach of contract – an approach according to which such considerations tend to receive limited attention and to play a fairly residual role in devising the response to a breach. Calls for assigning fault a more central role in the law of contract are often inspired by the thought that it ought to reflect more systematically and more directly the morality of promise. The article seeks to expose this theoretical stance as misguided, instead locating the common law's approach to fault – including in terms of the role it does occasionally play – in broader ideas underpinning the legal and the political culture of which the common law is a product, in particular the harm principle. The article starts with an account of the various sources of interest in the philosophical foundations of the law of contract, and concludes with an outline of what makes a law of contract moral, taking issue with the view that a moral law of contract is one which seeks to enforce morality.

Document Type: Research Article

DOI: http://dx.doi.org/10.5235/096157610792240740

Publication date: July 1, 2010

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  • Until 2007 the King's Law Journal was known as the King's College Law Journal. It was established in 1990 as a legal periodical publishing scholarly and authoritative Articles, Notes and Reports on legal issues of current importance to both academic research and legal practice. It has a national and international readership, and publishes refereed contributions from authors across the United Kingdom, from continental Europe and further afield (particularly Commonwealth countries and USA). The journal includes a Reviews section containing critical notices of recently published books.
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