Harvey, William B.

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OHIO STATE LAW JOURNALVolume 20 Spring 1959 Number 2DAMAGES IN CONTRACTFOREWORDWILLIAM B. HARVEY*In 1931 when Selected Readings on the Law of Contracts waspublished under the auspices of the Association of American LawSchools, remedial problems played anything but a prominent role in thevolume. The table of contents was almost entirely innocent of anysuggestion of remedial coverage. Much of the contents might fairly berepresented by such ontological disputes as that revolving around theequation of promises and offers, and the true nature of detriment inconsideration. To be sure, a careful searcher of the index might finda few entries under such headings as Damages, Specific Performance,and Quasi-Contract. But the focus of attention was substantive rights,validated through a stately dialetic that moved with measured treadthrough offer, acceptance, consideration. "Hawks, pepper corns, orroundelays-they move the Court like calomel." And still Llewellyn'spersistent question, "What the hell!"'In fairness it should be said that the "Law of Contracts" asdelimited by the distinguished authors and editors of the 1931 volumerespected established jurisdictional lines in the academic trade. Onedidn't fudge on his brothers who taught Damages, Equity or perhapsQuasi-Contract. Thus generations of law students were conditionedearly to thoroughly bi-level view of rights: substantive rights, enjoyingvirtual immunity from the skeptical question, "So what," and remedialrights, examined in variously labeled but discrete curricular packages.Much current scholarship, of which this symposium provides ex-amples, and, to an increasing extent, the teaching of contract law arenow emphasizing the inseparability of substance and remedy. This isgain. But there is more than one level of discussion of remedies-itdoesn't suffice to talk only in terms of availability, important thoughthat fact is. One must also ask, if a remedy is available, how good ordesirable is it, compared with others which might be used. Consider,for example, the vendor of land facing his defaulting vendee. Can hemaintain an action at law for the unpaid price? The evidence suggests*Professor of Law, University of Michigan.1 Llewellyn, Ballade of the Class in Contracts, PUTr IN His THUMB (1931).OHIO STATE LAW JOURNALthat in most states he probably can. But how can he realize on hisjudgment? Can he levy on the land itself? If so, what passes on theexecution sale? If not, what is the status of his title after he removesthe stay of execution on his judgment by depositing a deed in court?If such questions and any answers worth hazarding don't mark out aclear channel, and probably even if they do, the relative advantage andrisk of alternative remedies remain for consideration. What about adamage action, with or without a prior resale of the land? Or fore-closure of the contract in equity? Or perhaps invoking the forfeitureclause in the contract and forgetting the whole sorry mess? Only aftersuch a weighing and measuring, a totaling of .benefit and hazard, canone talk significantly about the vendor's "contract right."Fortunately, this symposium is not restricted to the damage remedyor those based "on the contract." Equitable relief receives an appropriatebow and several of the articles are concerned with remedies aiming atrestitution. The latter area presents one of the most pressing demandsfor scholarly analysis and systemization of doctrine. Restitution mayprovide at least a backstop in situations where preferred contract relieffails, but it may offer more. For example, the dramatic results fre-quently encountered in quasi-contract cases where plaintiff suffers abreach while performing a loss contract suggest a highly attractive alter-native to a remedy on the contract.While trends relating to contract remedies are less dramatic thanthose in tort, they are nevertheless discernible. Increasing willingnessto give restitutionary relief to a defaulting plaintiff and more widespreadrecognition that lost resale profits are often the only fair measure ofcompensation on breach of a sale contract characterize the decisions.Modified remedial patterns under the Uniform Commercial Code de-mand careful analysis and evaluation. In developing and presentingthis symposium, the Journal makes a significant contribution to an under-standing and appraisal of the actually operative law of contracts.[Vol. 20

Damages in Contract - Foreword

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Damages in Contract - Foreword

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