The Remoteness Rules in Contract: Holmes, Hoffmann, and Ships that Pass in the Night

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This paper provides a critical re-examination of the 'new approach' to contractual damages and remoteness principles. The crux of the argument is that any attempt to uncover an implicit allocation of contractual risk or a tacit 'assumption of responsibility' for certain losses pursues a chimera. It engages the judiciary in an indeterminate or impossible exercise and encourages courts to conflate what was actually agreed by the parties with what it would have been 'fair,' 'just' or 'reasonable' for them to have agreed in the circumstances. The orthodox, Hadley v Baxendale Rules are restated as 'default rules' – external rules of law to which courts must turn in order to fill gaps in otherwise incomplete agreements. Throughout, reference is made to recent English decisions and lessons are drawn from the failed attempts of Justice Oliver Wendell Holmes to introduce a similar theory in the United States.


Document Type: Research Article


Publication date: February 1, 2012

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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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