Miscellaneous Leftover Questionsgreenspun.com : LUSENET : Lessig's Contracts : One Thread
I just have a few more miscellaneous questions left over from class today.
First, today we assumed that the wedding photographer, taxi drivers, etc. were the repeat players. From that assumption, it seemed to follow that the rp's should change their behavior (e.g. contract around a liability or raise prices to compensate for a possible breach) in order to respond to the potential for breach. What if we consider the citizens the repeat players? This gets back to my obession with social expectations and social fabric. If breaches become common, perhaps these rp's will also change their behavior accordingly by not entering contracts. Does anyone see this as a potential risk?
Second, toward the end of class we compared the Parker and Clark cases and one difference that surfaced was that Parker intended to get something from the contract other than the wages -- for instance the opportunity to play a specific feminist role, the opportunity to enhance or sculpt her professional reputation, etc. In the Parker case, however, the Plaintiff was just trying to force higher damages by continuing the work without permission and so he was only entitled for damages up until the point that the contract was cancelled. Underlying this holding, however, seems to be the assumption that the restorer only gained profits if the project was completed. Oftentimes, however, craftsman count implicitly on their work acting as an advertisement for their services. This potential source of future business is denied to this plaintiff becase the painting were never finished. In fact, the plaintiff is worse off because in taking time to work on a project that could never act as a future source of income, he did not have the time to pursue other projects that would result in both profit and future business. I guess this comes back to my sense that contracts exist within a complicated context of action and reaction, and damages just do not make it all better. Does this bother anyone else?
-- Anonymous, October 26, 1998
For the first question, In some aspects, I agree with Ms. Geetter that we may have crisis that nobody wants go into a contract. But don't forget that we are in a world of capitalism, especially in America. In an open market, if most of the businessmen got bad ruputations as customary breacherer, on the other hand, those who still keep good ruputations will have better opportunities to get their contracts and benefits. Through the "power of the market", those customary breachers need to give up their bad habits in order to survive in the market. So I think in the long run, they will be "kicked out" by the market naturally.
About the second question, in Clark case, of course the defendant did breach the contract. and after that, the remaining is to deal with the remedy according to the terms of the contract to "punish" the breacher. At this point, I agree with the court's opinion, the plaintiff had no right to force the defandant to continue the contract. I think this kind of contact which concerns about the topic of providing services for a perioid of time has its own unique characteristics, and it should be different from the transaction of selling goods. In this kind of long-term contract about providing service, if any party breaches, he should have an opportunity to terminate the contract (of course, at the same time, he also has to pay to cover the loss of the other party). The parth suffering form the breach of contract should get his remedy from damages instead of keeping going on the contract and forcing the breacher to accept the result.
-- Anonymous, October 26, 1998