Seana Shiffrin, ‘Enhancing Moral Relationships Through Strict Liability’

The article considers the apparent tension between contract’s strict liability doctrine with respect to performance and the general moral precepts that liability should track fault and that one should internalize the costs of one’s own choices, but not the costs of arbitrary misfortune. By making contractors strictly liable for their failure to perform, the law attributes greater responsibility to agents than these moral principles seem to countenance – namely by according them legal responsibility for events or outcomes for which they bear no fault. Those precepts, however, are couched at a highly abstract level that is more appropriate for blame and punishment than for the sort of responsibility that contract law assigns. In the article, I defend the strict liability doctrine as a philosophically interesting default rule that supports trusting relationships between the parties and lays the groundwork for a healthier moral cooperative relationship between contracting parties than a fault-based system would. Strict liability norms relieve the promisee of pressures to supervise and intrude upon the promisor during performance and so eliminate some of the impetus to cultivate and display attitudes and behaviours of distrust. In turn, strict liability encourages the promisors to assume full responsibility for a project and by relieving promisees of pressures to intrude on the promisor gives the promisor a greater arena of autonomy in which to operate. While fault-based liability rules may encourage displays of distrust and sow the seeds of conflict, strict liability rules assign responsibility in ways that encourage trust and other components of healthy moral relationships. This justification for strict liability brings out an internal tension between strict liability in contract and broad construals of the duty to mitigate, a doctrine that places the burden of self-help on disappointed promisees. As I argue, broad construals of the duty to mitigate work at cross-purposes with the moral functions of a strict liability regime, offering further reasons to interpret the duty to mitigate narrowly.

Shiffrin, Seana, Enhancing Moral Relationships Through Strict Liability (June 9, 2016). Forthcoming in University of Toronto Law Journal; UCLA School of Law, Public Law Research Paper No 16-28.

First posted 2016-06-12 08:53:02

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