Some people think that there is no duty to pay damages in the law of tort/breach of contract. A radical view is that there is no such duty even after damages are assessed. A more modest view is that there is no such duty until damages are assessed. It takes a ruling (or agreement) on quantum to create a duty to pay anything.
I will mainly discuss Stephen Smith’s version of the more modest view, and his arguments for it. I will also say something about the not dissimilar line taken by John Goldberg and Benjamin Zipursky. I will find the arguments wanting. I will defend the view that the duty to pay exists in law from the moment of the wrong, even though it is at that moment a duty, the discharge of which necessitates some guesswork (since the amount due will only retroactively be determined). Or at the very least - allowing for variations in the relevant law between jurisdictions - I will defend the view that the retroactivity of the determination of the duty’s content is no obstacle to its existence.
Presenter
John Gardner FBA is a Senior Research Fellow at All Souls College, Oxford, with the title of Professor of Law and Philosophy in the University of Oxford. From 2000 to 2016 he held Oxford's Chair of Jurisprudence. Before that he was Reader in Legal Philosophy at King's College London (1996-2000), Fellow and Tutor in Law at Brasenose College, Oxford (1991-6) and Examination ('Prize') Fellow of All Souls College, Oxford (1986-91). He has also held visiting positions at Columbia University, Yale University, the University of Texas at Austin, Princeton University, the Australian National University, the University of Auckland, and most recently Cornell University. He serves on the editorial boards of numerous journals including the Oxford Journal of Legal Studies, Ethics, Law and Philosophy, and The Journal of Moral Philosophy. Called to the Bar in 1988, he has been a Bencher of the Inner Temple since 2002 (although he does not practice). He was elected a Fellow of the British Academy in 2013.
John’s major interests are the philosophy of law (including the philosophy of private law, the criminal law and public law) as well as nearby areas of moral and political philosophy and the philosophy of action.
About Australian Centre for Private Law Events
The mission of the Australian Centre for Private Law is to foster the development and understanding of the private law through advanced theoretical, doctrinal, empirical and historical research, and the dissemination of that research through education and professional outreach. By supporting the work of its Fellows, the ACPL seeks to promote research in all areas of private law and to establish itself as a research centre of national and international importance. The core initiatives of ACPL are:
Research: To advance a deeper understanding of the structure, principles and policies of the private law through advanced theoretical, comparative, and empirical analysis.
Education: To promote, facilitate and disseminate the results of that research for the benefit of Australia’s social and economic fabric.
Professional Outreach: To engage the judiciary and members of the legal profession in discussion about the values, goals and methods of private law and the respective roles of the judiciary, the legal profession and the academy in the interpretation and reform of private law.
The ACPL embraces all branches of private law, including the law of contract, torts, trusts, equity, property, unjust enrichment, including theoretical and jurisprudential dimensions and contextual applications thereof.
