Contract Law Ensures Entitlements Through an Expectation Remedy for Breach Sample Clauses

Contract Law Ensures Entitlements Through an Expectation Remedy for Breach. 2671 Conclusion 2672 * Class of 1966 Research Professor of Law; Director, Family Law Center, University of Virginia School of Law. This Essay was prepared for the Symposium entitled The Law of Parents and Parenting, hosted by the Fordham Law Review on November 5, 2021, at Fordham University School of Law. 2645 2646 FORDHAM LAW REVIEW [Vol. 90

Contract Law Ensures Entitlements Through an Expectation Remedy for Breach. The final—and perhaps largest—divide between parentage agreements and contracts concerns how law protects the rights that emerge from an exchange, agreement, or contract. The nature of a substantive right can be reflected in the remedies that ensure it, and contract law has a distinct remedial structure. In moral contract theory, a primary function of law is to ensure a promisee’s right. A promisee can xxx to enforce a promise only if the promisor breaches the contract or declares an intention to do so.158 After a breach, how the relationship proceeds depends on the significance of the breach and the choice of the aggrieved party. When a breach is “relatively minor,” parties must complete performance and the aggrieved party can xxx for damages. For a “material” breach going to the essence of the contract, the aggrieved party may choose to suspend performance and xxx immediately. Moreover, as civil recourse theorists emphasize, a breach does not justify compensatory public fines; instead, a breach gives the promisee the power to bring suit—the promisee may choose to exercise the power or to release the promisor.159 This reflects the promisee’s ongoing power over the entitlement transferred in the contract.160 Finally, if the plaintiff’s suit is successful, the typical remedy is expectation damages designed to make a promisee indifferent, as much as possible, between performance and legal remedy.161 Parentage agreement law has no similar concerns. Courts do not ask which parent breached their parentage agreement to care for the child, much less whether the breach was material. Noncustodial parents must pay child support, but it is not a compensatory duty triggered by a breach. They must pay support even if they were an ideal parent and lost custody through no fault of their own, such as if the other parent relocated. Moreover, a parent’s duty to care for and support the child is not conditioned on reciprocity of performance. A noncustodial parent owes child support even if the custodial parent or the child refuses to participate in parenting time.162 Child support differs in other ways from private law rights of a promisee. Children cannot waive their rights, releasing a parent from obligations.163 The law also imposes an affirmative duty to pay child support, which executive officials enforce and which failure to pay may be a crime.164