Doctrines of Last Resort
D. Gordon Smith, 𝘋𝘰𝘤𝘵𝘳𝘪𝘯𝘦𝘴 𝘰𝘧 𝘓𝘢𝘴𝘵 𝘙𝘦𝘴𝘰𝘳𝘵, 𝘪𝘯 Rᴇᴠɪsɪᴛɪɴɢ ᴛʜᴇ Cᴏɴᴛʀᴀᴄᴛs Sᴄʜᴏʟᴀʀsʜɪᴘ ᴏғ Sᴛᴇᴡᴀʀᴛ Mᴀᴄᴀᴜʟᴀʏ: Oɴ ᴛʜᴇ Eᴍᴘɪʀɪᴄᴀʟ ᴀɴᴅ ᴛʜᴇ Lʏʀɪᴄᴀʟ 426 (2013).
good faith and fair dealing, fiduciary duty, unjust enrichment, contracts
The doctrines of good faith and fair dealing, fiduciary duty, and unjust enrichment are doctrines of last resort because they are activated only when all other potentially applicable commands from constitutions, statutes, regulations, ordinances, common law decisions and contracts have been exhausted. In these circumstances ⎯ where positive law and private ordering are otherwise incomplete ⎯ contracting parties rely heavily on informal social sanctions to protect against opportunism, but the doctrines of last resort reinforce these social sanctions. Rather than regulating all of the deviations and adjustments that are common in contractual relationships, doctrines of last resort constrain extreme deviations from social norms, reinforcing agreements precisely in those contexts where informal social sanctions are weakest.
Chapter 15 of Revisiting the Contracts Scholarship of Stewart Macaulay: On the Empirical and the Lyrical, Jean Braucher, John Kidwell, & William C. Whitford eds., 2013.
Revisiting the Contracts Scholarship of Stewart Macaulay: On the Empirical and the Lyrical