Retaliation, Remedies, and Contracts

Sergio Mittlaender and Vincent Buskens

American Law and Economics Review, 2019, vol. 21, issue 2, 280-306

Abstract: Contracts commit individuals to a future course of action and create feelings of entitlement on the parties. In a contractual gap, parties’ duties and rights are not univocal, and while promisors will often feel entitled to breach, promisees will feel entitled to receive the promised performance. This divergence leads to disputes, aggrievement, and retaliatory behavior whenever one of the parties feels shortchanged. Remedies for breach are then apt not only to induce performance by promisors, but also to minimize promisees’ aggrievement, reduce retaliation, and thereby keep the peace in society. This article reports results from an experiment that investigates under what circumstances promisees retaliate to breach and to what extent expectation damages fulfill the function of crowding out retaliatory behavior. It reveals how norms of fairness play a fundamental role in shaping parties’ reactions to breach, as promisees did not punish any violation of a prior agreement. They rather punished breach when the promisor profited from it, and the outcome was an unfair distribution of the gains from trade. Neither loss of expectancy nor the inefficiency of the result induced retaliation. Expectation damages successfully crowded out retaliation by disappointed promisees, and thereby avoided high welfare losses from decentralized forms of punishment of perceived wrongs.

Date: 2019
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