Stephen Smith argues against what he calls ‘the duty view’ of damages awards in private law. The duty view is the view according to which ‘damage[s] awards confirm existing legal duties to pay damages.’ I am credited with advancing ‘the most plausible’ version of the duty view – namely, the ‘inchoate duty view’ according to which the court makes determinate, by its award, what was up to then an indeterminate legal duty. I respond here by arguing that strictly there is no such thing as a liability to pay damages. It is a liability to be required to pay (a specified sum in) damages.
John Gardner, Damages Without Duty, University of Toronto Law Journal (2019).