Efficient Breach or Slavery

I think there is a spectrum of alternatives between efficient breach and specific performance, so the extreme outcomes you are concerned can be easily alleviated without undermining specific performance entirely. For example, It is also possible to retain the invalidity of certain contracts (such as selling one’s self into slavery) while promoting specific performance as the default option in cases where such undesirable outcomes are unlikely. Alternatively, we could factor in some form of default punitive damages to represent the broader externalities not captured under typical efficient breach analysis. Another likely benefit of having specific performance as the default is reduced litigation costs, since there would be no need to speculate and argue over calculation of damages, contributory liability, et cetera in most cases. Such issues would be confined to the limited cases where specific performance was unsuitable.

-- By RohanGrey - 9 April 2012