promisee, or even to the promisor
, whether a donative promise that
other things, shields promisors
that conduct multistate business from
contrast, the duties of contractual promisors
never run to decedent
for goods or services that the promisor
does not deliver, restitution
then the Hadley rule falters--it induces promisors
to take precautions
can predict that many promisors
going into the transaction will expect
It may seem a little odd to think of promisees forcing promisors
The benefit from shifting incentives from evidence management to performance may, however, be offset somewhat by a factor we have largely excluded from our analysis: Under standards, promisors
may invest in predicting how a future court will interpret their vague obligation.
If the remedy is less than expectation damages and performance is efficient, the promisee will bribe the promisor
When damages are draconian (a la specific performance), promisors
will buy their way out of their duties to perform.
One explanation offered by advocates of the current system of remedy is that damages are fully compensatory, and a specific-performance rule might give opportunities for promisees to exploit promisors
without actually furthering the goal of compensation.
The promisee's weakened bargaining position arises not only because the promisor
will know that, in the event of breach, he will have to pay higher damages, but also, and more importantly, because he will learn the true value of performance to the promisee.