Moralists have long criticized the theory of efficient breach for its advocacy of promise breaking. But a fully developed theory of efficient breach has an internal morality of its own. It argues that sophisticated parties contract for efficient breach, which in the long run maximizes everyone’s welfare. And the theory marks some breaches — those that are opportunistic, obstructive, or otherwise inefficient — as wrongs that the law should deter, as transgressions that should not be priced but punished. That internal morality, however, does not excuse the theory from moral scrutiny. An extended comparison to Jean Renoir’s 1939 film, La Regle du Jeu (“The Rules of the Game”), illustrates what more sophisticated moral criticisms of the theory might look like. Renoir’s film depicts a society in which marital infidelity is a transgression that is tolerated, but only when done according to society’s rules. Renoir’s attitude toward that society suggests that moral critics of the efficient breach theory should focus not on its celebration of efficient breach, but on the value of the sort of moral community it imagines and on the theory’s effect on parties who are not playing the efficient breach game, whether because they do not understand its rules or because they seek a different type of obligation. The comparison to the film also highlights the theory’s own narrative elements, which both add to its persuasive power and, once identified, mark out its limits.
长期以来，道德家们一直在批评有效违约理论，因为它提倡违背承诺。但是，一个充分发展的有效违约理论有其自身的内在道德。它认为，经验丰富的各方签订有效违约合同，从长远来看，这将使每个人的福利最大化。该理论将一些违规行为——那些机会主义的、妨碍性的或其他方面效率低下的违规行为——标记为法律应该制止的错误行为，标记为不应定价而应受到惩罚的违规行为。然而，内在道德并不能使这一理论免于道德审查。与让·雷诺阿1939年的电影《游戏规则》(La Regle du Jeu)作进一步的比较，说明了对这一理论的更复杂的道德批评可能是什么样子。雷诺阿的电影描绘了一个社会，在这个社会中，婚姻不忠是一种可以容忍的越轨行为，但只有在符合社会规则的情况下才能容忍。雷诺阿对那个社会的态度表明，对有效违约理论的道德批评不应该关注它对有效违约的庆祝，而应该关注它所想象的那种道德社区的价值，以及该理论对那些不参与有效违约游戏的各方的影响，无论是因为他们不理解其规则，还是因为他们寻求一种不同类型的义务。与电影的对比也凸显了该理论自身的叙事元素，这些元素既增加了它的说服力，又一旦被识别出来，就表明了它的局限性。
{"title":"The Rules of the Game and the Morality of Efficient Breach","authors":"Gregory Klass","doi":"10.2139/ssrn.2734272","DOIUrl":"https://doi.org/10.2139/ssrn.2734272","url":null,"abstract":"Moralists have long criticized the theory of efficient breach for its advocacy of promise breaking. But a fully developed theory of efficient breach has an internal morality of its own. It argues that sophisticated parties contract for efficient breach, which in the long run maximizes everyone’s welfare. And the theory marks some breaches — those that are opportunistic, obstructive, or otherwise inefficient — as wrongs that the law should deter, as transgressions that should not be priced but punished. That internal morality, however, does not excuse the theory from moral scrutiny. An extended comparison to Jean Renoir’s 1939 film, La Regle du Jeu (“The Rules of the Game”), illustrates what more sophisticated moral criticisms of the theory might look like. Renoir’s film depicts a society in which marital infidelity is a transgression that is tolerated, but only when done according to society’s rules. Renoir’s attitude toward that society suggests that moral critics of the efficient breach theory should focus not on its celebration of efficient breach, but on the value of the sort of moral community it imagines and on the theory’s effect on parties who are not playing the efficient breach game, whether because they do not understand its rules or because they seek a different type of obligation. The comparison to the film also highlights the theory’s own narrative elements, which both add to its persuasive power and, once identified, mark out its limits.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"230 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130718916","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article contrasts contract law understood in terms of duties of performance based on an exchange of promises with an alternative approach based on an agreement to assume responsibility for reliance. It explains why the reliance approach is not open to the objections made of other versions of the reliance theory of contract, including the “death of contract” theory, or to the “circularity” objection to reliance theories, and it also shows that the suggested reliance approach provides a better account of contract law, both as to the remedial regime and as to various aspects of the substantive law.
{"title":"A New Version of the Reliance Theory","authors":"Peter Jaffey","doi":"10.2139/ssrn.3800100","DOIUrl":"https://doi.org/10.2139/ssrn.3800100","url":null,"abstract":"This article contrasts contract law understood in terms of duties of performance based on an exchange of promises with an alternative approach based on an agreement to assume responsibility for reliance. It explains why the reliance approach is not open to the objections made of other versions of the reliance theory of contract, including the “death of contract” theory, or to the “circularity” objection to reliance theories, and it also shows that the suggested reliance approach provides a better account of contract law, both as to the remedial regime and as to various aspects of the substantive law.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116372519","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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