A comparative fault defense in contract law

Ariel Porat*

*Corresponding author for this work

Research output: Chapter in Book/Report/Conference proceedingChapterpeer-review


This chapter calls for the recognition of a comparative fault defense in contract law. Part I sets the framework for this defense and suggests the situations in which it should apply. These situations are sorted under two headings: cases of noncooperation and cases of overreliance. Part II unfolds the main argument for recognizing the defense and recommends applying the defense only in cases where cooperation or avoidance of overreliance is low cost. In the 1970s, the comparative fault defense (CFD) in tort law began to spread across the United States, about thirty years after it became prevalent in the United Kingdom. Both legislatures and courts throughout the United States adopted this defense, with the latter applying it in tort cases on a daily basis. Today, few will call for the restoration of the doctrine that preceded it: the contributory negligence defense. That defense enabled courts to either impose full liability on the injurer (when there was no contributory negligence) or leave the burden of harm completely on the victim's shoulders (when there was contributory negligence). The CFD rejects this binary approach to fault, instead allowing apportionment of damages between the injurer and the contributorily negligent victim. Over the years, the CFD has spread into the contract law of many countries (e.g., Canada, the United Kingdom, and Israel), albeit primarily in cases where a party breached a contractual duty of reasonable care or in cases of concurrent tort and contract liability.

Original languageEnglish
Title of host publicationFault in American Contract Law
EditorsOmri Ben-shahar, Ariel Porat
PublisherCambridge University Press
Number of pages16
ISBN (Electronic)9780511780097
ISBN (Print)9780521769853
StatePublished - 1 Jan 2010


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