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2017 Jotwell: J. Things We Like 1 (2017)
Law in the Cultivation of Responsibility and Trust

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Contracts
The Journal of Things We Like (Lots)
http://contracts.jotwell.com



Law in the Cultivation of Responsibility and Trust

Author  : Hila Keren

Date  : July 13, 2017

Seana  Shiffrin, Enhancing Moral Relationships through Strict Liability, 66 U. Toronto L.J. 353 (2016).


Consider the following everyday scenario as a simplified version of complex contracting. Having been invited to a
dinner party a guest asked the host what to bring. A dessert would be nice, replied the host, to which the guest
responded:  consider it done! On the morning of the party the guest purchased a delicious cake from a celebrated
bakery and was  ready to make good  on the promise. Sadly, in the evening, as the guest got the cake out of the fridge,
it was covered with odd green spots and seemed  inedible. Clearly, the guest is at no fault for what just happened, but
what should the guest do next: Get another dessert on the way to the party or just go empty-handed? Seana Shiffrin's
thought-provoking article Enhancing Moral Relationships through Strict Liability describes and answers this dilemma as
it manifests itself in the domain of contracts' performance (fault is irrelevant and thus the guest should get another
dessert before heading to the party!) - but it goes further and also compellingly explains why demanding full
performance  of contracts, irrespective of fault, is the appropriate legal approach, both morally and legally.

The article offers a defense of the performance phase of the contractual strict liability doctrine from a novel perspective.
The doctrine sets a default rule: unless otherwise agreed between the maker of a promise (promisor) and its recipient
(promisee), the promisor is the one who is responsible for full performance, even if reasons outside of his or her control
make  the task arduous. The strictness of the promisor's duty to perform is restrained only by the doctrine of
impracticality that may release the promisor from the burden of performance but merely in extreme and rare cases.

So why, as a general rule, should the promisor be responsible even if he or she is at no fault? Shiffrin's brilliant
analysis offers a fresh justification for this traditional principle. Strict liability, she argues, promotes a healthier moral
cooperative relationship between contracting parties more than a fault-based system would, offering a structural
background  that plays an important supportive role in fostering trust. One salient component of this structural
background  is Shiffrin's special theorizing of responsibility-not as emerging from a faulty past but rather as generated
by the agency of promisors as they utilize the prospective power of their promises. By divorcing the notion of
responsibility from the idea of fault, a strict liability rule allows, indeed empowers, promisors to stretch their agency
beyond  the limits of their control. In the face of obstacles that make performance harder, strict liability encourages
promisors to devote all their energy, creativity, persistence, connections and any other resources to achieving
performance, even  when-like  in the case of the bakery that supplied a defective cake-someone else is at fault. And, as
Shiffrin explains, expanding the responsibility of the promisor has a dramatic impact on the promisee. The latter is
thereby invited to trust the promisor and is released from having to constantly worry about the performance process,
invest resources in preventive efforts, or intrusively scrutinize the promisor. In the dinner party scenario the host can
thus focus on, say, cooking and need neither call her guest again (and again) nor purchase a spare dessert.
Accordingly, the promisor's increased responsibility combined with the promisee's decreased policing has the
potential to allow the promisee to depend more on the promisor while granting the promisor a greater moral respect; a
positive dynamic that Shiffrin calls an environment that is more conducive to a morally healthy relationship between
the parties. To illustrate: in such an environment the guest's effort to get a substitute dessert is not only required, it is
also essential to the success of the party and to the preservation of the relationship between the parties.

Shiffrin's philosophical defense of the strict liability doctrine is forceful and is accompanied by a criticism of the duty to
mitigate the harm caused by the breach-a  duty that contract law assigns to promisees. Imposing such broad duty on
promisees, argues Shiffrin, shifts too much of the burden of failed performance to them while wastefully releasing
promisors from the very valuable responsibility they assume under the strict liability rule. In that way, mitigation


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