Combining Contract Remedies: Performance, Rescission, and Damages

Abstract

This volume asks how the choice to keep or end a contract changes the scope of recovery. Claims for performance, rescission, restitution, and damages each demand a different state of affairs. Only by examining compatibility and counter-performance can the necessary relief be preserved without the same loss being recovered twice. The path to relief opens where the respective requirements for performance, rescission, and damages are satisfied and the performance to be returned and the loss to be compensated are identified without overlap, and closes where, in a delay of performance requiring a demand, the requirements of a demand and non-performance are absent, or where a defense of simultaneous performance prevents an unconditional demand for performance from being enforced. The six sections address, in turn, the demand to maintain performance, the enforcement blocked by simultaneous performance, the demand that opens rescission, the state to be restored after rescission, the coexistence of rescission and damages, and the boundary of the same loss. The strongest counterargument is as follows. Narrowing a party's freedom to assert multiple remedies together weakens protection in uncertain situations. Case design, loss calculation tables, and negotiation closing strategies are not addressed in this volume.