10.1.3.1 E. A. Harriman, The Law of Contracts §§551-552 (2d ed. 1901) | Kessler, Gilmore & Kronman | November 01, 2012

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10.1.3.1 E. A. Harriman, The Law of Contracts §§551-552 (2d ed. 1901)

by Kessler, Gilmore & Kronman
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E. A. HARRIMAN, THE LAW OF CONTRACTS §§551-552 (2d ed. 1901): [§551.] A man may incur contractural obligation with reference to a past, present, or future event. If he contracts that something is, or has been, what is the nature of his obligation? Clearly, in such a case, he simply assumes a risk and binds himself to pay to the other party a sum of money sufficient to compensate the latter for the non-fulfilment of the assurance. In such a case the contract is broken, if at all, as soon as it is made, and the primary obligation necessarily coincides with the secondary or sanctioning obligation to pay damages. If the contract provides that something shall happen in the future, the promised event mayor may not be within the control of the promisor. If the event is not within his control, his promise can amount only to the assumption of a risk as in the preceding case. In this case, also, the primary obligation to compensate the other party for the non-occurrence of the promised event is necessarily coincident with the secondary or sanctioning obligation to pay damages for breach of contract. If, however, the promised event is one which in its nature is within the control of the promisor, a different situation arises. Here the primary obligation of the promisor is to perform his promise; and his failure to perform gives rise to a secondary obligation to pay damages. In every contract, therefore, there is the assumption of a risk; and every breach of contract gives rise to a secondary obligation to pay damages; but in contracts where the thing promised is within the control of the promisor, there is, in addition, a distinct primary obligation to perform the contract; while in other contracts the primary obligation is necessarily coincident with the secondary obligation.

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[§552.] Chief Justice Holmes maintains[1] that the true view of contract is that a man who makes a contract incurs an obligation to respond in damages for the non-fulfilment of the contract, which obligation is defeasible by performance. That this is true in all cases where the thing promised is not within the control of the promisor is clear. That there is no primary obligation to perform a contract when performance is within the control of the promisor is a doctrine open to the following objections. First, the doctrine seems to rest only on the limitations of procedure in the king's courts, and not on any true historical theory of contract.[2] Second, the doctrine is entirely opposed to all equitable ideas; and the whole tendency of our modern law is in the direction of equitable theories.[3] Third, the doctrine involves an unreasonable departure by the law from fundamental ethical principles.

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[1] Common Law, 298-303.

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[2] "The oldest actions of the common law aim for the most part not at 'damages,' but at what we call 'specific relief.' . . . Even when the cause of action is in our eyes a contractual obligation, the law tries its best to give specific relief. . . . The common law has excellent intentions; what impedes it is an old-fashioned dislike to extreme measures." Pollock & Maitland, History of English Law, II. 593, 594.

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[3] Lingenfelder v. Wainwright Brewing Co., 103 Mo. 578; 15 S.W. 844; H. & W. 181; King v. Duluth, M. & N. Ry. Co., 61 Minn. 482; 63 N.W. 1105.

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June 02, 2014

10.1.3.1 E. A. Harriman, The Law of Contracts §§551-552 (2d ed. 1901)

10.1.3.1 E. A. Harriman, The Law of Contracts §§551-552 (2d ed. 1901)

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