A Contracts Chestnut for Tort Theorists

Of late I have been reading and thinking about the theory of private law, mostly torts. This is a bit odd as I am generally a “contracts guy” not a “torts guy.” What interests me for now, however, are those features that contract shares with tort, in particular the bilateralism of damages (wrongdoers pay victims) and private standing (the law empowers victims to act against wrongdoers rather than providing third-party enforcement or the like). One of the big debates in this area is between corrective justice theorists — like Ernest Weinrib and Jules Coleman — who see tort law as vindicating a duty compensation and civil recourse theorists — like Ben Zipursky, John Goldberg, and my soon-to-be colleague Jason Solomon — who see tort law as providing a means for victims to act against tortfeasors. I tend to think that the civil recourse folks have the upper hand in this debate. Indeed, I have even offered a modified civil recourse theory of contractual liability based on the dismemberment of goats. It occurs to me that a venerable debate from contract theory might be of use to the torts guys.

A key point of disagreement between corrective justice folks and civil recourse folks is whether tort law vindicates a duty to compensate. The civil recourse theorists deny that this is so because, they argue, there is no duty to compensate. If the plaintiff never brings a law suit there is no legal wrong that the tortfeasor commits by failing to tender damages to the victim. It occurs to me that an old chestnut from contract theory — the option theory of contract — might be of use to the lovers quarrel among tort theorists. Oliver Wendell Holmes famously declared that the duty to keep a contract means the duty to perform or pay damages and nothing more. His friend and correspondent, the English jurist Frederick Pollock was not persuaded. In one letter, Pollock offered Holmes the following argument: You claim that the the duty to keep a contract consists of the duty to perform or pay damages. A suit for breach of contract vindicates this limited conception of contractual duty. Under the writ of assumpsit, however, there is no requirement that the plaintiff plead the defendant’s failure to tender damages. Yet if the law really was about vindicating the option theory of contract, then failure to plead tender of damages ought to be a way of dismissing a suit for failure to state a claim.

It seem to me that a similar argument could be made against corrective justice theorists. If tort law is about vindicating the duty to compensate, why is there no requirement in a tort action to plead the absence of tender? Indeed, my understanding is that tender of damages is not a defense to a tort action. Rather, tender only becomes a defense if the victim accepts the payment and relinquishes her claim against the tortfeasor. On the other hand, if tort law were about the duty to compensate, then it seems that tender of damages ought to be a defense, as in such a case the wrongdoer would have completely carried out his duties under the law. Such, however, is not the case. Indeed, payments by tortfeasors to plaintiffs only become defenses when they in effect serve to buy out the plaintiff’s right of recourse. Furthermore, there is no requirement that the amount tendered be equal to the defendant’s loss. In this sense, they look much more like the earliest tender of wergeld, which was transparently an attempt to buy off the victims demand for vengeance.

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