NOMINAL AND PUNITIVE REMEDIES IN ENGLISH CONTRACT: THEORY AND DOCTRINE

Abstract

It is assumed that legal theory can be distinguished from legal doctrine in that the former, rather than dealing with ‘the salient features of a municipal legal system’, addresses the underlying ‘recurrent issues’ about the nature of law in general or – by extension – of a particular legal issue. However, the separation of theory and doctrine need not mean that the two should be insulated from each other. Rather, it would be desirable if doctrine informed theory to prevent the abstract concepts furnished from straying excessively for reality and, conversely, if theory informed the reform of doctrine, when necessary. The proper remedies for breach of contract – and, specifically, the proper role of nominal and punitive remedies – is a recurrent issue of contract theory, and therefore an opportunity to test the relationship between legal theory and doctrine.

In the realm of theory, one must first define nominal and punitive remedies, identify the differences between the two, and determine the possible forms which each may take. It is at the following stage – assessing when, if ever, nominal and punitive remedies should be available in contract – that theoretical disagreement as to the nature of contract becomes relevant, as different theories of contract assign a different scope to nominal and punitive remedies. On the proper scope of nominal damages, controversy aligns nicely with the conventional division between promissory and non-promissory theories; by contrast, the debate on the availability of punitive remedies is decidedly untidy, with similar theories diverging and radically different theories converging, ultimately introducing an additional element of complexity.