Skip to main content
    • Aa
    • Aa

Contract Remedies and Inalienable Rights*

  • Randy E. Barnett (a1)

I. Introduction

Two kinds of remedies have traditionally been employed for breach of contract: legal relief and equitable relief. Legal relief normally takes the form of money damages. Equitable relief normally consists either of specific performance or an injunction – that is, the party in breach may be ordered to perform an act or to refrain from performing an act. In this article I will use a “consent theory of contract” to assess the choice between money damages and specific performance. According to such a theory, contractual obligation is dependent on more fundamental entitlements of the parties and arises as a result of the parties' consent to transfer alienable rights.

My thesis will be that the normal rule favoring money damages should be replaced with one that presumptively favors specific performance unless the parties have consented to money damages instead. The principal obstacle to such an approach is the reluctance of courts to specifically enforce contracts for personal services. The philosophical distinction between alienable and inalienable rights bolsters this historical reticence, since a right to personal services may be seen as inalienable.

I will then explain why, if the subject matter of a contract for personal services is properly confined to an alienable right to money damages for failure to perform, specific enforcement of such contracts is no longer problematic. Finally, I shall consider whether the subject matter of contracts for corporate services is properly confined to money damages like contracts for personal services, or whether performance of corporate services can be made the subject of a valid rights transfer and judicially compelled in the same manner as contracts for external resources.

Linked references
Hide All

This list contains references from the content that can be linked to their source. For a full set of references and notes please see the PDF or HTML where available.

Randy E. Barnett , “A Consent Theory of Contract,” Columbia Law Review, vol. 86 (1986), pp. 269321.

Anthony Kronman , “Specific Performance,” University of Chicago Law Review, vol. 45 (1978), pp. 351382

Alan Schwartz , “The Case for Specific Performance,” Yale Law Journal, vol. 89 (1979), pp. 271306.

Richard A. Epstein , “Unconscionability: A Critical Reappraisal,” Journal of Law and Economics, vol. 18 (1975), p. 300.

George Sher , “Right Violations and Injustices: Can We Always Avoid Trade-offs?Ethics, vol. 94 (1984), pp. 212224.

Randy E. Barnett , “Pursuing Justice in a Free Society: Power v. Liberty,” Criminal Justice Ethics, vol. 4 (Summer/Fall, 1985), pp. 5072

Guido Calabresi and A. Douglas Melamed's seminal article, “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral,” Harvard Law Review, vol. 85 (1972), pp. 10891128.

Terrance McConnell , “The Nature and Basis of Inalienable Rights,” Law and Philosophy, vol. 3 (1984), p. 43

Hillel Steiner , “The Structure of a Set of Compossible Rights,” Journal of Philosophy, vol. 74 (1977), pp. 767775

Anthony Kronman , “Paternalism and the Law of Contracts,” Yale Law Journal, vol. 92 (1983), pp. 774776

Larry Alexander , “Pursuing the Good — Indirectly,” Ethics, vol. 95 (1985), pp. 315332

John Gray , “Indirect Utility and Fundamental Rights,” Social Philosophy & Policy, vol. 1 (Spring 1984), pp. 7391.

Richard A. Epstein , “Why Restrain Alienation,” Columbia Law Review, vol. 85 (1985), pp. 971972

Susan Rose-Ackerman , “Inalienability and die Theory of Property Rights,” Columbia Law Review, vol. 85 (1985), pp. 931969

John Dawson , “Specific Performance in France and Germany,”Michigan Law Review, vol. 57 (1959), p. 532.

Robert Cooter And Melvin Aron Eisenberg , “Damages for Breach of Contract,” California Law Review, vol. 73 (1985), pp. 14321465

Lon L. Fuller and William R. Perdue Jr., “The Reliance Interest in Contract Damages,” Yale Law Journal, vol. 46 (1936), pp. 5296.

Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

Social Philosophy and Policy
  • ISSN: 0265-0525
  • EISSN: 1471-6437
  • URL: /core/journals/social-philosophy-and-policy
Please enter your name
Please enter a valid email address
Who would you like to send this to? *


Full text views

Total number of HTML views: 0
Total number of PDF views: 18 *
Loading metrics...

Abstract views

Total abstract views: 190 *
Loading metrics...

* Views captured on Cambridge Core between September 2016 - 26th May 2017. This data will be updated every 24 hours.