John Gardner, ‘Damages Without Duty’

Stephen Smith argues against what he calls ‘the duty view’ of damages awards in private law. The duty view is the view according to which ‘damage[s] awards confirm existing legal duties to pay damages.’ I am credited with advancing ‘the most plausible’ version of the duty view – namely, the ‘inchoate duty view’ according to which the court makes determinate, by its award, what was up to then an indeterminate legal duty. I respond here by arguing that strictly there is no such thing as a liability to pay damages. It is a liability to be required to pay (a specified sum in) damages.

John Gardner, Damages Without Duty, University of Toronto Law Journal (2019).

First posted 2019-06-12 14:54:22

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