Nili Cohen (Tel-Aviv University) has posted Distributive Justice in the Enforcement of Contract on SSRN. Here is the abstract:
The
paper discusses the relationship between a rule and its exception. In
our case the rule regarding enforcement as the principal remedy for
breaking a contract and the exception whereby the remedy of enforcement
is denied on the ground of justice and the injured party is to be
remedied through damages.Enforcement as a primary remedy is
basically predicated on a moral principle, based on autonomy and trust.
What should be the underlying principles behind the justice exception?
Among the Aristotelian notions of justice – corrective, distributive,
retributive – the last two constitute the contents of corrective
justice in the present context. In fact denial of enforcement creates a
forced sale of the injured party’s entitlement to the party in breach.
Such a move is based on distributive justice. No definitive theory
stands behind the complex notion of distributive justice. The suggested
theories are based on dignity, fairness, wealth-maximization, effort,
investment, personal choice and need. Distributive elements of morality
should take into account also retributive elements, such as fault and
deterrence, so that retributive justice is actually a factor in the
application of distributive justice in enforcement.
The
elements composing distributive justice may be grossly grouped into two
categories reflecting, again, morality and efficiency, and the claim of
the paper is that a commitment to the supremacy of enforcement should
also lead to the supremacy of morality in the application of
distributive justice to enforcement, with efficiency as a second role
player. Some case-law classics serve as illustrations.
The
paper concludes with a brief survey demonstrating how Israeli case law
– holding a declared commitment to the supremacy of enforcement – coped
with cases of building a construction incompatible with the terms of
the contract. A comparison is made with property rule, and the cases
are scrutinized according to considerations of distributive justice
which were actually applied and those that should have applied to
preserve the original entitlement of the injured party and the
supremacy of enforcement.