… This article seeks to contribute to our understanding of contractual liability and to the ongoing debate about the relative merits of some of today’s leading contract theories. The article first considers the existing theories of contractual liability. It concludes that the Holmesian, instrumental and voluntarist accounts all suffer from similar difficulties. The rights-based account can avoid those difficulties, but it faces other problems of its own. The article then suggests that reflection on the difficulties that afflict the rights-based theory should prompt us to reconsider the proper target of a theory of contractual liability. That is, we should consider more closely the character of the liability standard that actually appears in the common law of contract, in order to identify what is truly distinctive about it. The article proceeds to develop a new understanding of contractual liability, which attends to aspects of it that theorists have tended to overlook. Once we attain a better understanding of the special character of contractual liability, the article contends, an alternative account of the phenomenon should fall into place. The article concludes by advancing an account based upon another very well-known general theory of contract law: the theory of contract as promise …
Nick Sage, Contractual Liability and the Theory of Contract Law, King’s Law Journal, 30:3, 459-488 (2019), DOI: 10.1080/09615768.2019.1686224.