Bibliographic record
Abstract
Contracts that contemplate alternative possible modes of performance, frequently referred to as alternative contracts, are common wherever written contracts are routinely used and relied upon. Nevertheless, courts in major legal systems have encountered enormous difficulty articulating a consistent and appropriate remedial principle to govern damages when such contracts are breached by the contracting party having the election to perform in alternative ways. This article analyzes this issue, and attempts to identify the most appropriate remedial principle for breaches of alternative contracts. To this end, Part I adopts a positive standpoint canvassing the rules governing remedies in a number of leading common law and civilian jurisdictions and illustrating in the process that remedies for breaches of alternative contracts are not consistently approached across jurisdictions. Indeed, even within several jurisdictions there are inconsistencies. Part II takes a normative approach to the question and illustrates that the most desirable remedial principle is a solution that has not yet been adopted for breaches of alternative contracts. Strikingly, we demonstrate that the ordinary common law remedy for breach of contract can be regarded as a special case of the most appropriate remedial approach for contracts with one or more modes of performance. Part III offers some thoughts regarding the possible reconciliation of Parts I and II, suggesting that existing rules may be normatively justified as the second-best in some circumstances. Part IV concludes with the suggestion that courts adopt the principle that the mode of performance that would be selected by the party with the election if specific performance were ordered be used for the purposes of assessing damages.
Fetched live from OpenAlex and de-inverted. Abstracts are not stored in this database: the inverted indexes are 8.6 GB of the frame’s 9.3 GB of text, and the host has 13 GB free.
How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.026 | 0.051 |
| Meta-epidemiology (narrow) | 0.001 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.002 |
| Bibliometrics | 0.003 | 0.002 |
| Science and technology studies | 0.007 | 0.034 |
| Scholarly communication | 0.010 | 0.012 |
| Open science | 0.004 | 0.009 |
| Research integrity | 0.013 | 0.012 |
| Insufficient payload (model declined to judge) | 0.009 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".