In the ancient Near East, contracts were often solemnized by hacking up a goat. The ritual was an enacted penalty clause: “If I breach this contract, let it be done to me as we are doing to the goat.” This Article argues that we are not so far removed from our goat-hacking forbearers. Legal scholars have argued that contractual liability is best explained by the morality of promise making, or by the need to create optimal incentives in contractual performance. In contrast, this Article argues for the simpler, rawer claim that contractual liability consists of consent to retaliation in the event of breach. In the ancient ritual with the goat, the consented-to retaliation consisted of self-help violence against life and limb. The private law in effect domesticates and civilizes retaliation by replacing private warfare with civil recourse through the courts. It thus facilitates the social cooperation made possible by the ancient threats of retaliation, while avoiding the danger of escalation and violence that such private violence presented. This civil recourse theory of contractual liability provides an explanation for a number of remedial doctrines that have proven difficult for rival interpretations of contract law to explain—including the penalty-clause doctrine, limitations on expectation damages, and the basic private-law structure of contractual liability. Finally, this Article responds to some of the most powerful objections that might be made against a civil recourse theory of contractual liability.
96 Iowa Law Review 529-579 (2011)
Oman, Nathan B., "Consent to Retaliation: A Civil Recourse Theory of Contractual Liability" (2011). Faculty Publications. 1127.