In the realm of contractual remedies, there are two axioms upon which legal scholars and jurists have come to rely, to wit, the court will not make for the parties a better contract than they made for themselves, and the goal of awarding contract damages is to put the aggrieved party in as good of a position as he would have enjoyed upon full performance. These two basic principles were etched into contract jurisprudence with the tools of justice and retribution in order to assure that contracting parties remain in complete control of their relations and that judicial involvement in contractual disputes is limited to fulfilling the intent of the parties. Thus, whenever a doctrine appears to run afoul of the underpinnings of contractual intent, it stands to reason that its veracity is called into question. This Article calls into question one such doctrine, the doctrine of economic waste. As applied in the context of contractual rights and remedies, the doctrine of economic waste exemplifies the difficulties of utilizing a robust but misunderstood theoretical construct. While such a doctrine is best understood from an economic perspective, such a perspective has been virtually ignored in the doctrine's jurisprudential application in contract law. Theoretical ignorance and a cavalier application of the economic waste doctrine is particularly problematic when it leads to confounding and incoherent remedial outcomes that defy the primary goal of contract damages—that is, to award the nonbreaching party his expectation interests.
Juanda Lowder Daniel and Kevin S. Marshall,
Avoiding Economic Waste in Contract Damages: Myths, Misunderstanding, and Malcontent,
85 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol85/iss4/2