Sandy Steel (University of Oxford) and Samuel Williams (King’s College London) have posted Constructing the No Breach Counterfactual: The Preclusionary Rule, (2026) Law Quarterly Review (Oct) forthcoming, on SSRN. Here is the abstract:
When compensation is claimed for breach of a private law duty, it is typically quantified by reference to a counterfactual in which the defendant did not commit the breach. The “preclusionary rule”, as we will call it, is relevant to the construction of this counterfactual. This rule sometimes prevents parties from populating the counterfactual with hypothetical breaches of duty. The clearly established core of the rule: a defendant is not able to argue that but for the particular breach of duty which occurred, they would have committed some other breach of the same duty, even if this is what would have happened but for the breach. In addition, the preclusionary rule arguably prevents claimants from populating the counterfactual with breaches of duty owed by the claimant to the defendant in order to establish that they are worse off as a result of a breach. One might be tempted to suggest that all wrongdoing is excluded from the counterfactual, but this is clearly not the law. Whilst it is false to say that all wrongdoing is excluded from the counterfactual, the precise contours of the current rule are unclear. The purpose of this article is to identify the extant uncertainties in the preclusionary rule, explore possible ways of resolving those uncertainties in a normatively desirable manner, and then to restate the preclusionary rule as clearly as possible.
Highly recommended!
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