ABSTRACT
Traditional legal scholarship and Law & Economics posit that all contractual interests are, and should be, protected by contract law. This article challenges this notion by examining whether public perceptions align with legal doctrine. In an experiment, respondents report their perceived social appropriateness of breach and the appropriate level of damages considering different types of losses suffered by the promisee. Contrary to the traditional legal and economic perspectives, the findings suggest that the public perceives loss of benefit as the most socially inappropriate, followed by loss of reliance, loss of expectancy, and no loss, in the ascending order of need for legal redress. Moreover, respondents award higher damages for loss of benefit compared to loss of reliance, and for loss of reliance compared to loss of expectancy. While contract law traditionally emphasizes the protection of the expectation interest, the public’s moral intuitions suggest a nuanced approach. The study underscores the importance of considering public morality in shaping contract law, prompting a reassessment of the hierarchy of contractual interests and of the determination of damages for breach.
Mittlaender, Sergio, Contractual Interests, Ranked (October 2, 2025), Max Planck Institute for Social Law and Social Policy Research Paper No 2025-4.
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