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Torsello, Marco --- "Remedies for Breach of Contract" [2006] ELECD 206; in Smits, M. Jan (ed), "Elgar Encyclopedia of Comparative Law" (Edward Elgar Publishing, 2006)

Book Title: Elgar Encyclopedia of Comparative Law

Editor(s): Smits, M. Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420130

Section: Chapter 55

Section Title: Remedies for Breach of Contract

Author(s): Torsello, Marco

Number of pages: 20

Extract:

55 Remedies for breach of contract*
Marco Torsello


1 Introduction
According to the basic rule of contract law, common to all western legal
systems, pacta sunt servanda; accordingly, even in purely consensual con-
tracts, the reciprocal promises and rules agreed upon by the parties are to
be treated as legally binding rules governing the relationship between those
parties (Watson, 2001, p. 40). In fact, in the simplest legal system one could
theoretically think of, that basic principle could be regarded as the only
necessary substantive mandatory rule, any other contractual settings being
left to the freedom of contract of the parties. Even in such an oversimplified
contract law system, however, the question would still need to be addressed
as to what consequences derive from the breach of that fundamental rule;
i.e., what legal tools are made available to the aggrieved party to react to
(or possibly to prevent and avoid) the detrimental consequences stemming
from the default of the breaching party in a contractual relationship.
The remedial system in contract law, therefore, may be regarded as the
bundle of legal tools available to the aggrieved party to react against the
non-compliance by the other party with its contractual obligations, thus
making the aggrieved party's contractual rights enforceable (Friedmann,
2005, p. 10). Any legal system which aims at governing contracts cannot
overlook the need for remedies, although the comparison of different legal
systems shows that the tools made available to the aggrieved party may
differ in various respects. ...