ABSTRACT
At first, the notion that there is such a thing as shared responsibility in American contract law may sound fanciful, if not absurd. A key reason why parties contract in the first place is to allocate risks and responsibilities between them to clarify who must do what to move the collaboration forward. As such, contractual obligations are understood to be binary, belonging either to one party or the other, not both. In practice, this means that, if there is a breach, only the obligated party will be held responsible, not both. And, if remedies are awarded, they will flow only from the breaching to the non-breaching party, not between them. Thus, the proposition that the parties might be contractually responsible not just for their own obligations, but also for those of their counterparty, seems incoherent.
And yet, as this Article shows, courts frequently go beyond the express terms of the contract to make the parties share responsibility for the performance of one another’s obligations. Thus shared responsibility: Each party is held responsible for the other’s contractual (non)performance, even in the absence of an express commitment. This Article ‘goes fishing’ for shared responsibility in three key areas of contract law: The contents of the contract, breach, and remedies. It demonstrates that shared responsibility is brought to bear to resolve contract disputes more often and with greater legal effect than the simple binary understanding of contract predicts. When it enters the judicial analysis, it can drastically change the answers to the questions: Who had the obligation to perform? Who breached? And, finally, whose harm should be remedied and how?
Having shown that shared responsibility is already a prominent, if overlooked, feature of American contract law, this Article argues that courts should employ it as a default rule in certain situations. Specifically, courts should employ a shared responsibility default (SRD) when the contract was breached, or otherwise failed, and (1) both parties contributed to the failure, and (2) the failure could, or has already, generated high social costs (eg, public endangerment, human rights violations in supply chains, consumer deception). The SRD activates the tort law principle of comparative negligence in contract to hold both parties accountable for their respective contributions to the breach and related social costs. It sets better incentives for parties to behave, not just toward one another, but also toward non-parties, promoting both contract and public policy objectives.
Dadush, Sarah, Shared Responsibility In American Contract Law (January 1, 2026).
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