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24 Ariz. L. Rev. 733 (1982)
Willfulness: A Crucial Factor in Choosing Remedies for Breach of Contract

handle is hein.journals/arz24 and id is 741 raw text is: WILLFULNESS: A CRUCIAL FACTOR IN CHOOSING REMEDIES FOR BREACH OF CONTRACT Patricia H. Marschall* What is it, then, about promises, that endows them with such power? In the first place, in making a promise, I set up expectations, an equilibrium; should I break my promise, I upset that equilibrium and fail to live up to those expectations; I am unfair, given what I had promised and what I now owe to another. Second, in breaking faith, J am failing to make my promise come true. -Sisella Bok, Lying Courts have failed to develop a clear definition for the term willful breach of contract or for its various synonyms.' This Article proposes that willful breach of contract be defined as a knowing breach by aparty not legally excusedfrom performing, which is madefor anyprimarypurpose other than to confer a benet on the aggrieved party. Admittedly, this broad definition of willful breach would cover most contract breaches. The remedial principles suggested in this Article would therefore be appli- cable to most defendants. However, within the universe of contract breachers at least three cate- gories would be excluded from this definition of willful breach: first, those breachers who are excused from performing under the doctrines of impos- * Professor of Law, North Carolina Central University Law School. J.D., University of Texas, 1955; LL.M., Harvard University, 1968. I have benefited from the comments of several persons on earlier drafts of this Article. Partic- ular thanks is expressed to James Beckwith, Marion Benfield, Peter Linzer, Ian Macneil, Susie Powell, Thomas Rowe, Robert Spearman, and David Vernon. My research assistants, Wanda Naylor and Richard Anderson, also provided valuable assistance. 1. Synonyms used by courts have included knowing, voluntary, deliberate, inten- tional, unwarranted, unjustified, or bad faith. WEBSTER's DICTIONARY (2d ed. 1977) de- fines willful in two current ways. The first meaning is saying or doing something deliberately or intentionally, which connotes a sense of voluntariness without regard to motive. Id. The second definition is following one's own will unreasonably; obstinate; stubborn. Id. This definition seems to include, in addition to voluntariness, an unreasonable lack of regard for another person. The definition of willfulness suggested in this Article includes Webster's first meaning, that is, an intentional act, plus an absence of legal excuse for the failure to perform, and the absence of sole intent to benefit the non-breaching party. Section V of this Article discusses the need to enlarge the instances in which punitive damages can be granted for breach of contract and sug- gests that Webster's second meaning of willfulness be used to create a subcategory of willful reachers who should be liable for punitive damages, that is, those who intentionally breach with an unreasonable disregard for the other party.

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