ABSTRACT
Those rowdy property plaintiffs – sometimes it’s hard to tell what it is they want. Their desires are often much harder to decipher than those of plaintiffs in other common law fields. Tort litigation usually involves an individual who believes she has been wronged and asks a court to undo that wrong. The plaintiff compares her current situation to the reality she would have enjoyed if the injury had not befallen her. She then asks a court to provide the remedy necessary to get as close as possible to that ‘benchmark reality’. Similarly, in contract disputes, the plaintiff compares her current situation to a reality where both parties abided by their respective agreements. Unlike in a tort dispute, however, where the benchmark reality is simply the status quo ante, the benchmark reality in a contract dispute is likely to be contested, since it is not prescribed by law. Still, the law stipulates that the benchmark reality ought to be defined according to the manifested intent of the parties. Thus the benchmark reality in tort and contract law, though different, is well established in our legal system.
Shoked, Nadav, Property’s Perspective (or of Whom to Be Jealous) (January 1, 2013), 161 University of Pennsylvania Law Review Online 118 (2013); Northwestern Public Law Research Paper No 13-42.
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