Duties, liabilities, and damages

Harvard Law Review

Volumn 125, Issue 7, 2012, Pages 1727-1756

  Smith, Stephen A ^a  

^a MCGILL UNIVERSITY   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84861375683     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (137)

1. Montreal, Que., By-Law RCG 10-016 §§ 7, 14 (Aug. 26, 2010).
2. The same proposition is defended in Nathan B. Oman, Why There Is No Duty to Pay Damages: Powers, Duties, and Private Law (William & Mary Law Sch., Research Paper No. 09-112, 2011), available at http://ssrn.com/abstract=1906753.
3. The same proposition is defended in Nathan B. Oman, Why There Is No Duty to Pay Damages: Powers, Duties, and Private Law (William & Mary Law Sch., Research Paper No. 09-112, 2011), available at http://ssrn.com/abstract=1906753.
4. As I explain later, similar language is used with, and similar consequences are See Dan B. Dobbs, Law of Remedies 12 (2d ed. 1993). Second, unlike Oman I argue that an important objection to the idea of an ordinary duty to pay damages is that wrongdoers cannot reasonably be expected to know how much they should pay by way of damages or, in some cases, whether they ought to pay damages at all.
5. As I explain later, similar language is used with, and similar consequences are See Dan B. Dobbs, Law of Remedies 12 (2d ed. 1993). Second, unlike Oman I argue that an important objection to the idea of an ordinary duty to pay damages is that wrongdoers cannot reasonably be expected to know how much they should pay by way of damages or, in some cases, whether they ought to pay damages at all.
6. As I explain later, similar language is used with, and similar consequences are See Dan B. Dobbs, Law of Remedies 12 (2d ed. 1993). Second, unlike Oman I argue that an important objection to the idea of an ordinary duty to pay damages is that wrongdoers cannot reasonably be expected to know how much they should pay by way of damages or, in some cases, whether they ought to pay damages at all.
7. The same proposition is defended in Nathan B. Oman, Why There Is No Duty to Pay Damages: Powers, Duties, and Private Law (William & Mary Law Sch., Research Paper No. 09-112, 2011), available at http://ssrn.com/abstract=1906753.
8. The same proposition is defended in Nathan B. Oman, Why There Is No Duty to Pay Damages: Powers, Duties, and Private Law (William & Mary Law Sch., Research Paper No. 09-112, 2011), available at http://ssrn.com/abstract=1906753.
9. As understood here, a judicial "award" is the operational part of a legal decision. Common examples include orders or judgments that require the performance of a contract, the payment of money, or the cessation of an activity.
10. See, e.g., Peter Birks, Rights, Wrongs, and Remedies, 20 O.J.L.S. 1, 28 (2000).
11. See generally, e.g., Jules L. Coleman, Risks and Wrongs 197-439 (1992).
12. Charles Fried, Contract as Promise (1981).
13. Arthur Ripstein, Force and Freedom (2009).
14. Ernest J. Weinrib, The Idea of Private Law (1995).
15. Randy E. Barnett, A Consent Theory of Contract, 86 Colum. L. Rev. 269 (1986).
16. Peter Benson, The Unity of Contract Law, in TheTheory of Contract Law 118 (Peter Benson ed., 2001).
17. Stephen R. Perry, The Moral Foundations of Tort Law, 77 Iowa L. Rev. 449 (1992). Rights-based theories are sometimes described as corrective justice theories.
18. For an overview, see Benjamin C. Zipursky, Philosophy of Private Law, in The Oxford Handbook of Jurisprudence and Philosophy of Law 623, 627-31 (Jules Coleman & Scott Shapiro eds., 2002). The label is problematic because the concept of corrective justice is understood in radically different ways.
19. Jules L. Coleman, Risks and Wrongs 8 (1992) (describing a top-down approach).
20. See Ernest J. Weinrib, The Idea of Private Law 3 (1995) (emphasizing the longstanding suspicion of the idea of private law in American legal scholarship). I happily acknowledge that there are overlaps between, on the one hand, my diagnosis of the state of private law theory and my account of some of the tenets of the New Private Law and, on the other hand, Weinrib's critique of functionalist accounts of private law and his defense of an internal approach. Nonetheless, important differences remain. Most obviously-and most saliently for mainstream legal scholars in the United States-I am claiming for private law the mantle of pragmatism, rather than what Weinrib describes as "formalism, "
21. Ernest J. Weinrib, Two Conceptions of Remedies, in JustifyingPrivate Law Remedies 3, 31-32 (Charles E.F. Rickett ed., 2008) [hereinafter Weinrib, Two Conceptions]. The just-mentioned theories are, however, alike in that they all explain damage awards on the basis that victims have rights to the payment of damages.
22. Primary legal duties arise from "not-wrongs, " such as entering an agreement, being born, or attaining the age of majority. Secondary duties, by contrast, arise from legal wrongs, such as a breach of contract or a tort. Writers who use this terminology typically suppose that the main example of a secondary duty is a duty to pay damages. See, e.g., Rafal Zakrzewski, RemediesReclassified 165-77 (2005).
23. In The Idea of Private Law, Weinrib describes the law of damages as imposing liabilities.
24. Jules L. Coleman, Risks and Wrongs 8 (1992) (describing a top-down approach).
25. Jules L. Coleman, Risks and Wrongs 8 (1992) (describing a top-down approach).
26. See, e.g., Arthur Ripstein, As if It Had Never Happened, 48 Wm. & Mary L. Rev. 1957, 1979-82 (2007).
27. See Ernest J. Weinrib, The Idea of Private Law 3 (1995) (emphasizing the longstanding suspicion of the idea of private law in American legal scholarship). I happily acknowledge that there are overlaps between, on the one hand, my diagnosis of the state of private law theory and my account of some of the tenets of the New Private Law and, on the other hand, Weinrib's critique of functionalist accounts of private law and his defense of an internal approach. Nonetheless, important differences remain. Most obviously-and most saliently for mainstream legal scholars in the United States-I am claiming for private law the mantle of pragmatism, rather than what Weinrib describes as "formalism, "
28. See Ernest J. Weinrib, The Idea of Private Law 3 (1995) (emphasizing the longstanding suspicion of the idea of private law in American legal scholarship). I happily acknowledge that there are overlaps between, on the one hand, my diagnosis of the state of private law theory and my account of some of the tenets of the New Private Law and, on the other hand, Weinrib's critique of functionalist accounts of private law and his defense of an internal approach. Nonetheless, important differences remain. Most obviously-and most saliently for mainstream legal scholars in the United States-I am claiming for private law the mantle of pragmatism, rather than what Weinrib describes as "formalism, "
29. Jules L. Coleman, Risks and Wrongs 8 (1992) (describing a top-down approach).
30. Stephen R. Perry, The Moral Foundations of Tort Law, 77 Iowa L. Rev. 449, 478-79 (1992).
31. Stephen R. Perry, The Moral Foundations of Tort Law, 77 Iowa L. Rev. 449, 478-79 (1992).
32. I say "in principle" to allow for the possibility that the duty to pay damages is inchoate until fixed by the court. I explore this possibility in Part II.
33. The same proposition is defended in Nathan B. Oman, Why There Is No Duty to Pay Damages: Powers, Duties, and Private Law (William & Mary Law Sch., Research Paper No. 09-112, 2011), available at http://ssrn.com/abstract=1906753.
34. As I explain later, similar language is used with, and similar consequences are See Dan B. Dobbs, Law of Remedies 12 (2d ed. 1993). Second, unlike Oman I argue that an important objection to the idea of an ordinary duty to pay damages is that wrongdoers cannot reasonably be expected to know how much they should pay by way of damages or, in some cases, whether they ought to pay damages at all.
35. E.g., Guido Calabresi, The Costs of Accidents (1970).
36. William M. Landes & Richard A. Posner, The Economic Structure of Tort Law 4-5 (1987).
37. Richard A. Posner, Economic Analysis of Law 29-34 (8th ed. 2011).
38. Steven Shavell, EconomicAnalysis of Accident Law (1987).
39. Steven Shavell, Foundations of EconomicAnalysis of Law 9-32 (2004) [hereinafter Shavell, Foundations]. Utilitarian theories are often described as "economic" theories because contemporary writers who regard the law as a vehicle for promoting utility usually adopt economic tools and techniques in their arguments.
40. See, e.g., Thomas J. Miceli, The Economic Approach to Law 1 (2004) ("The economic approach to law assumes that rational individuals view legal sanctions (monetary damages, prison) as implicit prices for certain kinds of behavior, and that these prices can be set to guide these behaviors in a socially desirable direction. ").
41. Richard A. Posner, The Economics ofJustice 75 (1981) ("The basic function of law in an economic or wealth-maximization perspective is to alter incentives. ").
42. Paul G. Mahoney, Contract Remedies: General, in 3 Encyclopedia of Law & Economics 117, 118 (Boudewijn Bouckaert & Gerrit De Geest eds., 2000) ("The economic function of contract remedies... is to alter the incentives facing the party who regrets entering into the contract.... ").
43. Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089, 1092 (1972).
44. I explain the argument that follows in more detail in Stephen A. Smith, The Normativity of Private Law, 31 O.J.L.S. 215 (2011).
45. Authorities that are not viewed in this way may try to encourage compliance by attaching sanctions to their rules, but in this case the rules qua rules are superfluous: the same result could be achieved by making it clear that citizens who engage in a given behavior will be penalized.
46. O.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 459 (1897).
47. See Amir N. Licht, Social Norms and the Law: Why Peoples Obey the Law, 4 Rev. L. & Econ. 715, 715-17 (2008).
48. Paul H. Robinson & John M. Darley, The Utility of Desert, 91 Nw. U. L. Rev. 453, 468-71 (1997).
49. For an overview, see Richard H. McAdams & Eric B. Rasmusen, Norms and the Law, in 2 Handbook of Law & Economics 1573, 1573-1610 (A. Mitchell Polinsky & Steven Shavell eds., 2007).
50. See, e.g., Robert Cooter, Do Good Laws Make Good Citizens? An Economic Analysis of Internalized Norms, 86 Va. L. Rev. 1577, 1598-1600 (2000).
51. Robert Cooter, The Intrinsic Value of Obeying a Law: Economic Analysis of the Internal Viewpoint, 75 Fordham L. Rev. 1275, 1276-77 (2006).
52. See Charles J. Goetz & Robert E. Scott, Enforcing Promises: An Examination of the Basis of Contract, 89 Yale L.J. 1261, 1263-64, 1279-80 (1980).
53. See Charles J. Goetz & Robert E. Scott, The Mitigation Principle: Toward a General Theory of Contractual Obligation, 69 Va. L. Rev. 967, 971 (1983) and accompanying text.
54. E.g., Guido Calabresi, The Costs of Accidents (1970).
55. Richard A. Posner, Economic Analysis of Law 29-34 (8th ed. 2011), at 29-114.
56. Steven Shavell, Foundations of EconomicAnalysis of Law 9-32 (2004) [hereinafter Shavell, Foundations]. Utilitarian theories are often described as "economic" theories because contemporary writers who regard the law as a vehicle for promoting utility usually adopt economic tools and techniques in their arguments.
57. As I discuss in more detail below, see Richard A. Posner, Economic Analysis of Law 29-34 (8th ed. 2011) pp. 1738-40, some writers have explained contract damages on the basis that they give contracting parties incentives to breach whenever the cost of performance is greater than the value of performance-the so-called "efficient breach" theory.
58. See Richard A. Posner, Economic Analysis of Law 29-34 (8th ed. 2011), at 119-20.
59. Robert L. Birmingham, Breach of Contract, Damage Measures, and Economic Efficiency, 24 Rutgers L. Rev. 273, 292 (1970).
60. See John Gardner, What Is Tort Law For? Part 1: The Place of Corrective Justice, 30 Law& Phil. 1, (2011) pp. 1738-40.
61. See John Gardner, What Is Tort Law For? Part 1: The Place of Corrective Justice, 30 Law& Phil. 1, 33-35 (2011).
62. Professor John Gardner's explanation draws on Joseph Raz, Personal Practical Conflicts, in Practical Conflicts 172, 189-93 (Peter Baumann & Monika Betzler eds., 2004).
63. John Gardner, Obligations and Outcomes in the Law of Torts, in Relating to Responsibility111, 134 (Peter Cane & John Gardner eds., 2001).
64. John Gardner, Obligations and Outcomes in the Law of Torts, in Relating to Responsibility111, 134 (Peter Cane & John Gardner eds., 2001).
65. See Richard A. Posner, Economic Analysis of Law 29-34 (8th ed. 2011), at 119-20.
66. Robert L. Birmingham, Breach of Contract, Damage Measures, and Economic Efficiency, 24 Rutgers L. Rev. 273, 292 (1970).
67. See, e.g., Eric A. Posner, Economic Analysis of Contract Law After Three Decades: Success or Failure?, 112 Yale L.J. 829, 834-39 (2003).
68. Alan Schwartz, The Case for Specific Performance, 89 Yale L.J. 271, 278-96 (1979).
69. This qualification is necessary because contractual duties cannot plausibly be described as disjunctive in cases in which courts are willing to order specific performance of those duties.
70. O.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897).
71. For Holmes, to say there is a legal duty to pay a sum of money is not to say that legally the money should be paid; the duty may mean no more than that the law will force you to pay the money.
72. See, e.g., Daniel Markovits & Alan Schwartz, The Myth of Efficient Breach: New Defenses of the Expectation Interest, 97 Va. L. Rev. 1939, 2006 (2011). The authors limit their argument to commercial parties.
73. See, e.g., Daniel Markovits & Alan Schwartz, The Myth of Efficient Breach: New Defenses of the Expectation Interest, 97 Va. L. Rev. 1939, 2006 (2011). The authors limit their argument to commercial parties.
74. For an argument describing the general utility of implying terms that the parties would have wanted, see Charles J. Goetz & Robert E. Scott, The Mitigation Principle: Toward a General Theory of Contractual Obligation, 69 Va. L. Rev. 967, 971 (1983), which notes that "[i]deally, the preformulated rules supplied by the state should mimic the agreements contracting parties would reach were they costlessly to bargain out each detail of the transaction, "
75. This version of the disjunctive duty thesis is therefore similar to the idea, defended by some utilitarian writers, that the damages rules for breach of contract should be understood as default terms implied into all contracts. See, e.g., Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 Yale L.J. 87, 88, 101-04, 121-22 (1989).
76. Jason Scott Johnston, Strategic Bargaining and the Economic Theory of Contract Default Rules, 100 Yale L.J. 615, 615-18 (1990).
77. I discuss the civil law position briefly Helge Dedek, The Relationship Between Rights and Remedies in Private Law: A Comparison Between the Common and the Civil Law Tradition, in Taking Remedies Seriously 63 (Robert J. Sharpe & Kent Roach eds., 2010) and accompanying text.
78. Henry E. Smith, Institutions and Indirectness in Intellectual Property, 157 U. Pa. L. Rev. 2083, 2090-2103 (2009).
79. Primary legal duties arise from "not-wrongs, " such as entering an agreement, being born, or attaining the age of majority. Secondary duties, by contrast, arise from legal wrongs, such as a breach of contract or a tort. Writers who use this terminology typically suppose that the main example of a secondary duty is a duty to pay damages. See, e.g., Rafal Zakrzewski, RemediesReclassified 165-77 (2005).
80. Peter Birks, Definition and Division: A Meditation on Institutes 3.13, in The Classification of Obligations 1, 24 (Peter Birks ed., 1997).
81. Henry E. Smith, Institutions and Indirectness in Intellectual Property, 157 U. Pa. L. Rev. 2083, 2090-2103 (2009).
82. See, e.g., Edmunds v. Lloyds Italico & l'Ancora Compagnia di Assicurazione & Riassicurazione S.p.A., [1986] 1 W.L.R. 492 (P.C.) at 495-96 (Eng.).
83. The same proposition is defended in Nathan B. Oman, Why There Is No Duty to Pay Damages: Powers, Duties, and Private Law (William & Mary Law Sch., Research Paper No. 09-112, 2011), available at http://ssrn.com/abstract=1906753.
84. The same proposition is defended in Nathan B. Oman, Why There Is No Duty to Pay Damages: Powers, Duties, and Private Law (William & Mary Law Sch., Research Paper No. 09-112, 2011), available at http://ssrn.com/abstract=1906753.
85. See J.H. Baker, An Introduction to English Legal History 67 (3d ed. 1990).
86. S.F.C. Milsom, Historical Foundations of the Common Law 243-44 (2d ed. 1981).
87. See J.H. Baker, An Introduction to English Legal History 67 (3d ed. 1990).
88. See J.H. Baker, An Introduction to English Legal History 67 (3d ed. 1990).
89. See J.H. Baker, An Introduction to English Legal History 67 (3d ed. 1990).
90. This discretion is qualitatively different from the weak discretion that courts necessarily exercise whenever they apply general rules to specific facts. Courts openly acknowledge that the quantification of, for example, damages for pain and suffering involves a large subjective element. See, e.g., Wise v. Kaye, [1962] 1 Q.B. 638 at 669 (Eng.).
91. See Helge Dedek, The Relationship Between Rights and Remedies in Private Law: A Comparison Between the Common and the Civil Law Tradition, in Taking Remedies Seriously 63 (Robert J. Sharpe & Kent Roach eds., 2010).
92. Immanuel Kant, Critique of Pure Reason 473 (Norman Kemp Smith trans., 1965) (1787).
93. See Arthur Ripstein, Force and Freedom 190-98 (2009).
94. Lon L. Fuller, The Morality of Law 33-39 (rev. ed. 1969);
95. see also H.L.A. Hart, The Concept of Law 20-21 (1961).
96. See J.H. Baker, An Introduction to English Legal History 67 (3d ed. 1990).
97. S.F.C. Milsom, Historical Foundations of the Common Law 243-44 (2d ed. 1981).
98. As I explain later, similar language is used with, and similar consequences are See Dan B. Dobbs, Law of Remedies 12 (2d ed. 1993). Second, unlike Oman I argue that an important objection to the idea of an ordinary duty to pay damages is that wrongdoers cannot reasonably be expected to know how much they should pay by way of damages or, in some cases, whether they ought to pay damages at all.
99. As I explain later, similar language is used with, and similar consequences are See Dan B. Dobbs, Law of Remedies 12 (2d ed. 1993). Second, unlike Oman I argue that an important objection to the idea of an ordinary duty to pay damages is that wrongdoers cannot reasonably be expected to know how much they should pay by way of damages or, in some cases, whether they ought to pay damages at all.
100. This language is often explicit in civilian codes. See, e.g., Civil Code of Québec, S.Q. 1991, c. 64, art. 1458 (Can.) ("Every person has a duty to honour his contractual undertakings. ").
101. H.L.A. Hart, The Concept of Law 79-88 (1961).
102. Joseph Raz, Voluntary Obligations and Normative Powers II, 46 Proc. AristotelianSoc'y 79, 81 (1972) (emphasis added).
103. Henry E. Smith, Institutions and Indirectness in Intellectual Property, 157 U. Pa. L. Rev. 2083, 2090-2103 (2009).
104. Thus, a statute that attempted to impose a duty to pay a fine (for example, "anyone who litters has a legal duty to pay the state $1000") would be interpreted as imposing a tax. Only the latter interpretation makes sense of the fact that, because it is directed at citizens generally, the statute purports to declare a moral duty.
105. Andrew Burrows, Remedies for Torts and Breach of Contract 544-45 (3d ed. 2004).
106. As I explain later, similar language is used with, and similar consequences are See Dan B. Dobbs, Law of Remedies 12 (2d ed. 1993). Second, unlike Oman I argue that an important objection to the idea of an ordinary duty to pay damages is that wrongdoers cannot reasonably be expected to know how much they should pay by way of damages or, in some cases, whether they ought to pay damages at all.
107. There are also practical reasons for announcing legal duties in advance of ordering them or authorizing their execution. To the extent that paying damages is presented as a legal duty, citizens who are disposed to view their legal duties in the way the law wants them viewed-namely as moral duties-will approach such actions differently than they would if they were merely ordered to perform them.
108. For law-respecting citizens, settlements made in advance of litigation will not be regarded as akin to plea-bargaining deals, but rather as attempts to determine, so far as practical, their moral duties. Similarly, post-litigation payments will be regarded as fulfilling a moral obligation, not merely as something that one has been forced to do.
109. For these citizens, there will be a stigma attached to attempts to avoid payment (for instance, by hiding assets) that would not exist if the only reason for making the payment were that the law commanded such payment. Thus, if the law did indeed regard paying damages as a moral obligation, it would be in the law's interest to make this fact clear by clarifying that payment is a legal duty.
110. The same proposition is defended in Nathan B. Oman, Why There Is No Duty to Pay Damages: Powers, Duties, and Private Law (William & Mary Law Sch., Research Paper No. 09-112, 2011), available at http://ssrn.com/abstract=1906753.
111. John C.P. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115 Yale L.J. 524 (2005).
112. Benjamin C. Zipursky, Civil Recourse, Not Corrective Justice, 91 Geo. L.J. 695 (2003).
113. See John C.P. Goldberg & Benjamin C. Zipursky, The Moral of MacPherson, 146 U. Pa. L. Rev. 1733, 1777-98 (1998). As this observation implies, the same brass-tacks disposition that has fueled skepticism toward private law might well distort modern understandings of public law. I defer to scholars of public law on the extent to which it has done so and on whether there might be need of a new public law.
114. Henry E. Smith, Institutions and Indirectness in Intellectual Property, 157 U. Pa. L. Rev. 2083, 2090-2103 (2009).
115. H.L.A. Hart, The Concept of Law 79-88 (1961).
116. H.L.A. Hart, The Concept of Law 79-88 (1961).
117. H.L.A. Hart, The Concept of Law 79-88 (1961).
118. H.L.A. Hart, The Concept of Law 79-88 (1961).
119. Deterrence is one-but only one-possible explanation for the practice of punishing criminals.
120. For an overview of theories of punishment, see A Reader on Punishment (R.A. Duff & David Garland eds., 1994). As we saw earlier, with the exception of punitive damages, damage awards cannot be explained, even in principle, by deterrence (because the defendant's gain can exceed the award). This conclusion does not preclude the possibility that having to pay damages may influence citizens' behavior. It merely reflects the fact that if damage awards were designed to deter rights infringements, then we would expect them to be set much higher than they are.
121. I am not suggesting that all moral duties have or should have legal counterparts. I am merely reiterating the point made earlier that, from the law's perspective, legal duties are meant to reflect or give effect to moral reasons that already apply to the duties' subjects.
122. I am not suggesting that all moral duties have or should have legal counterparts. I am merely reiterating the point made earlier that, from the law's perspective, legal duties are meant to reflect or give effect to moral reasons that already apply to the duties' subjects.
123. See Peter Birks, Rights, Wrongs, and Remedies, 20 O.J.L.S. 1, 27 (2000).
124. See John Gardner, What Is Tort Law For? Part 1: The Place of Corrective Justice, 30 Law& Phil. 1, 33-35 (2011).
125. See Arthur Ripstein, Force and Freedom 190-98 (2009).
126. See Arthur Ripstein, Force and Freedom 190-98 (2009).
127. The term "vindication" is preferable because, while related to acknowledgment (and recognition), it is stronger and appropriately conveys the fact (as explained above) that the law actually requires an action as opposed to merely making a pronouncement.
128. See H. Patrick Glenn, Legal Traditions of the World 118-19, 123 (2000).
129. Barry Nicholas, The French Law of Contract 4 (2d ed. 1992).
130. See H. Patrick Glenn, Legal Traditions of the World 118-19, 123 (2000).
131. Barry Nicholas, The French Law of Contract 4 (2d ed. 1992).
132. See, e.g., Code civil [C. civ.] art. 1382 (Fr.) ("Every action of man whatsoever which occasions injury to another, binds him through whose fault it happened to reparation thereof. "). For an overview of the civil law position, see Helge Dedek, The Relationship Between Rights and Remedies in Private Law: A Comparison Between the Common and the Civil Law Tradition, in Taking Remedies Seriously 63 (Robert J. Sharpe & Kent Roach eds., 2010).
133. The distinctiveness, importance, and ubiquity of such awards is a theme discussed in Robert Stevens, Torts and Rights 59-91 (2007).
134. See, e.g., Huckle v. Money, (1763) 95 Eng. Rep. 768 (K.B.).
135. The distinctiveness, importance, and ubiquity of such awards is a theme discussed in Robert Stevens, Torts and Rights 59-91 (2007).
136. In the United Kingdom, a purchaser of defective goods is entitled to the difference in market value between the promised goods and the goods he received-even where he suffers no loss because the goods are satisfactory for his purpose. See, e.g., Rodocanachi, Sons & Co. v. Milburn Bros., [1886] Q.B.D. 67 at 76-77.
137. The distinctiveness, importance, and ubiquity of such awards is a theme discussed in Robert Stevens, Torts and Rights 59-91 (2007).