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Unpublished Paper
THE BROKEN PROMISE OF EFFICIENT BREACH THEORY: SACRIFICING CERTAINTY OF OBLIGATION FOR FALSE EFFICIENCY
ExpressO (2007)
  • Irma S. Russell, University of Tulsa College of Law
Abstract

The Broken Promise of Efficient Breach Theory: Sacrificing Certainty of Obligation for False Efficiency explores the foundational principles of contract law and economics as a way of assessing the failure of efficient breach theory to effectively describe or critique the damages principles of contract law. Important scholarship has criticized the efficient breach theory on numerous grounds, but to date the scholarship has not explored the fundamental attribute of contract law that I identify here: the transfer of the economic right to reallocate resources efficiently. Economics starts from the fundamental proposition that economic actors have the right to efficiently allocate their resources at all points in time. Contract law recognizes this right and, further, provides for the power to alienate this economic right by selling it in a contract. Recognizing and respecting this bit of hardwiring of contract law requires putting the normative message of economics in second place. Irma Russell

Keywords
  • efficient breach,
  • contracts,
  • wealth maximization
Disciplines
Publication Date
March, 2007
Citation Information
Irma S. Russell. "THE BROKEN PROMISE OF EFFICIENT BREACH THEORY: SACRIFICING CERTAINTY OF OBLIGATION FOR FALSE EFFICIENCY" ExpressO (2007)
Available at: http://works.bepress.com/irma_russell/1/