Breach of Contract: The Puzzle of Strict Liability
This chapter considers possible answers to the question of why courts apply a different standard of liability in contract cases than in tort cases. The chapter is organized around two broad categories of answers: (i) explanations that challenge the question's normative premises, and (ii) explanations that challenge the question's factual premises. Explanations in the first group argue that the question's normative premise that a strict liability standard is prima facie unjustified (i.e., that strict liability is normatively suspect) is incorrect. In contrast, explanations in the second group argue that the question's factual premise (i.e., that contract and tort law actually apply different standards of liability) is incorrect. It is argued that only one of the explanations in the second group — the ‘conjunctive obligation’ explanation — provides a satisfactory solution to the puzzle of strict liability.
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