November 30, 2010
Goldberg v. Eisenberg on excuse of performance
The current issue of Harvard's online Journal of Legal Analysis has an excellent give-and-take about excuse of performance between a pair of well-matched heavyweights. In the right corner, from New York City, wearing the light blue trunks with the white stripes, is Victor Goldberg, the Jerome L. Greene Professor of Transactional Law at Columbia Law School. In the left corner, from Berkeley, California, wearing gold trunks with a royal blue stripe, is Mel Eisenberg, the Koret Professor of Law at Boalt Hall. The exchange started last year when Eisenberg published Impossibility, Impracticability, and Frustration, 1 J. Leg. Analysis 207 (2009).
Goldberg now responds to that article with Excuse Doctrine: The Eisenberg Uncertainty Principle. Here's the abstract:
The world is in a bit of a mess. Oil prices soared to over $140 per barrel and within months plummeted to below $40. The pound fell from $2 to less than $1.40. Housing and stock prices crashed. Foreclosures, bankruptcies, and bailouts became newspaper staples. When things go awry like this, inevitably there will be many people and firms that regret having entered into contracts under more favorable circumstances. Many of them will be looking for ways to limit, or better yet avoid, the consequences. In a recent paper, a pre-eminent contracts scholar, Professor Melvin Eisenberg (2009), has provided them with considerable ammunition, arguing for expanding the domain of the excuse doctrines. His arguments for giving the disappointed contracting party a “get out of jail (almost) free” card, however, are seriously flawed.
Last year I published an article, “Impossibility, Impracticability, and Frustration,” in this Journal (Eisenberg 2009). Professor Victor Goldberg, a leading figure in the law-and-economics of contracts, has now published a counter-article, “Excuse Doctrine: The Eisenberg Uncertainty Principle,” also in this Journal (Goldberg 2010). Although Goldberg’s article purports to be a criticism of mine, in fact most of his points are directed to an Imaginary Article he has constructed out of thin air, consisting of statements I did not make and positions I did not imply. Accordingly, a major reason for this response is to set the record straight by comparing what Goldberg says that I said and implied with what I actually said and implied. In addition, those portions of Goldberg’s article that addressed what I did write are for the most part either based on a fallacious rhetorical device, simply incorrect, or both. Therefore, a second reason for this response is to show where and why Goldberg’s criticisms go astray. Finally, in one instance Goldberg has identified an erroneous sentence in “Impossibility, Impracticability, and Frustration,” and I also write to acknowledge that error.
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