Against Fuller and Perdue
Richard Craswell
67 U Chi L Rev 99 (2000)
The 1936 Article by Lon Fuller and William Perdue, "The Reliance
Interest in Contract Damages," deserves its place as a classic
in the history of contract theory. As a piece of substantive contract
scholarship, though, that article is several decades out of date, and
is note even very useful as an organizing principle in teaching contract
remedies. The first part of this article surveys various normative theories
that have been advanced by modern scholars, to show how little any of
them employ or depend on Fuller and Perdue’s three-way classification
between expectation, restitution, and reliance "interests."
The second part surveys the remedies case law, showing that Fuller and
Perdue’s classification is not even very helpful as a descriptive
organizing principle" it obscures important similarities between
remedies that nominally protect different "interests," and
important differences among remedies that nominally protect the same
"interest." This Article concludes that Fuller and Perdue’s
three-way classification—important as it undoubtedly was in the
historical development of contract theory—is no longer a useful
analytic tool, and offers some suggestions as to what might replace
their classification.
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