Vincenzo Roppo

Contractual liability: does it serve the functions of deterrence?

  • Abstract

Informations and abstract

Keywords: Deterrence; Contractual Liability; Breach of Contract; Remedies.

The article moves from the observation that the Italian legal literature on contract law, differently from the Italian legal literature on torts, still gives little weight or ignores altogether the deterrence function of contractual liability. Indeed, the article shows that also contractual liability may serve the goal of deterrence, both after the breach (in order to deter the debtor from insisting in the breach or to give him an incentive to cure the breach) and before the breach of the obligation (in order to discourage breach in the first place). In the light of the above, the following contractual law doctrines are briefly discussed: the right of the creditor to withhold performance; interests in case of delay; astreintes; clauses limiting or excluding liability; revaluation and interests on damages awarded; liquidated damages and penalty clauses; punitive damages. The article concludes by discussing advantages and disadvantages of distinguishing between contractual and extra-contractual liability cases by cases, rather than on a general basis.

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