Comparative Remedies for Breach of Contract by Nili Cohen and Ewan McKendrick (eds)

DOIhttp://doi.org/10.1111/j.1468-2230.2006.0614_3.x
AuthorGeneviève Helleringer
Publication Date01 Sep 2006
Nili Cohen an d Ewan McKendrick (eds),Comparative Remedies for Breach of
Contract,Oxford: Hart Publishing,2005, xli þ326pp, hb d45.00.
This book is essentiallya compilationof the proceedings of the conference’Com-
parative Remedies for Breach of Contract’which took place atTel-Aviv Univer-
sity in June 2002. The essayso¡er a theoretical and descriptive picture of remedies
for economic loss in contractual relationships, whether based on contract or tort
law (alternative dispute resolution methods are however not included). The col-
lection delivers a stimulating, though by construction not comprehensive, over-
view of an important and wide area of law in several jurisdictions, including
common law systems (England, USA, Canada), civil law systems (France,
Germany) and a mixed system (Israel).
The lackof progression^ i nevitablein such large scope projects ^ may catch the
reader slightly o¡ guard. Part One, divided into three chapters, is devoted to the
basic structure, concepts and goals of the law of remedies for breach of contract.
The six chapters of PartTwopresent a series ofcomparisons between the various
legal systems, whilst the four chapters of PartThree deal with remedies of speci¢c
performance and damages. It would be hazardous to attempt a detailed summary
of every nuance in the ^ oftenvery technical ^ arguments of the thirteencontri-
butions.This would be even less useful given the very clear introduction by the
editors. But in order to partly unravel someof the stimulating material,it is worth
presenting some of the key issues addressed.
Introducing Part One, Daniel Friedmann assesses the interrelationship
between’Rights and Remedies’, asking the following basic questions: can there
be a legal right that is unprotected by a remedy? What if this remedy lies in the
discretion of courts? Should the nature of a legal right be re£ected in the type of
remedyo¡ered for its protection, or is it the reverse? Friedmann describes di¡er-
ent theoretical answers, or ‘models’, along with their respective strengths and
weaknesses.The four suggested models are the following: (i) remedies determine
the existence and nature of the rights; (ii) legal rights precede remedies, which
merely derive from rights in time and importance; (iii) remedies constitute an
integral part of the legal right, being an attribute of such right; and ¢nally,
adapted from criminal law, (iv) a distinction should be made between conduct
rules (intended to guide private actors) and decision rules (binding on o⁄cials
applying the law). Friedmann draws interesting conclusions from the opposition
between the necessary preciseness of the de¢nition of contractual rights and the
unpredictable nature of breaches of s uch rights and associated remedies. His obser-
vations are echoed in Barak Medinas chapter,‘Renegotiation,‘‘E⁄cient Breach’’
and Adjustment’, which o¡ers pragmatic ways of restoring some sort of certainty
in damage awards. Medina underscores in this chapter the importance
of concentrating, before choosing the appropriate remedy, on its underlying
theoretical purpose, i.e. to consider remedy as a mechanism of adjustment or
preservation of contractu al rights.
The two opening chapters of PartTwo o¡er contrasting ^ and unconventional
^ comparative law approaches to the right to t erminate a contractand to the value
of protecting contractual relationships. MarkGergen’s’The law’s Response toExit
Reviews
863
rThe Modern LawReview Limited 2006
(2006) 69(5) MLR 855^86 8

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