An Institutional Theory of Law: New Approaches to Legal by N. MacCormick, Ota Weinberger

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By N. MacCormick, Ota Weinberger

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Let us just assume that it is, and let for now a simple justification suffice, namely, that thinking about a certain doctrine in a different way—for example, changing its classification—may shed new light on the purposes it serves. At the very least, it might help us to question the traditional explanations and justifications we are taught to believe in. 33 In this article, however, I want to point to some of the problems that a classification, in particular a division into the ‘general’ and the ‘special’ might entail.

13 382 P 2d 109 (Okl 1962). 14 SM Waddams, The Law of Damages, 4th edn (Toronto, Canada Law Book, 2004); AM Tettenborn, The Law of Damages (London, LexisNexis UK, 2003); S Smith, ‘The Law of Damages: Rules for Courts or Rules for Citizens’ in R Cunnington and D Saidov (eds), Contract Damages: Domestic and International Perspectives (Oxford, Hart Publishing, 2008). 15 The second is to pay a sum equal to any losses that the claimant suffered indirectly as a result of the above breach, for example losses arising from the delay in receiving actual or substitute performance.

But there are consequences. Failing to pay attention to contract law’s vertical border can lead scholars, judges and lawyers to apply the wrong principles to understand legal rules, to draw the wrong inferences from those rules, and to fail to make appropriate generalisations. The frequent attempts by contract law scholars to draw conclusions about the nature of contracts from the rules governing damages and specific performance is just the most obvious example of where this has happened. This article has barely scratched the surface.

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