1 This paper condenses an argument which runs throughout the discussion of contract in Harris, D, Campbell, D and Halson, R Remedies in Contract and Tort (London: Buttenvorths, 2nd edn, 2002) pp 2-284Google Scholar. Reference will be made to the more extensive discussion of specific issues in this book, which hereinafter will be referred to as Remedies.

2 [1998] Ch 439, CA and [2001] 1 AC 268, HL.

3 [1974] 1 WLR 798.

4 Goff, R and Jones, G The Law of Restitution (London: Sweet & Maxwell, 5th edn, 1999)Google Scholar and Birks, P An Introduction to the Law of Restitution (Oxford: Clarendon Press, revd edn, 1989)Google Scholar.

5 Friedmann, D, ‘The Performance Interest in Contract Damages’ (1995) 111 LQR 628 Google Scholar.

6 To be precise, Blake occupies a somewhat anachronistic place in the development of the case for generalised restitution. Whilst it was going through the appeal courts, Birks rather withdrew from some of the boldest claims he has made for restitution: Birks, P, ‘Misnomer’ in Cornish, W et a1 (eds) Restitution: Past, Present and Future (Oxford: Hart, 1998) p 1 Google Scholar. As Hedley has put it, in the academic literature at least, restitution is now in its ‘post-heroic’ phase: Hedley, S Restitution (London: Sweet & Maxwell, 2001) pp 211-216 Google Scholar. Blake, however, represents the heroic phase of militant restitution (though there is an undeniable loss of confidence between the Court of Appeal and House of Lords hearings: see the text accompanying n 109 below). We do not propose to trace all of the equivocations with which Birks' claims now are made. The modem argument for restitution has the great virtue of having acutely pointed up what is at issue in the fundamental choice between expectation and restitution in contract, and we trust we are considering the contractual implications of this argument at their most interesting by concentrating on the logical force of Blake and largely ignoring Birks' recent restatements.

7 [2001] 1 AC 268 at 299, HL. This seems to be conceded at points in the other speeches, particularly in that of Lord Nicholls which searches for a ‘just response’, and in that of Lord Steyn which insists on the importance of ‘the attainment of practical justice’: [2001] 1 AC 268 at 287, 292, HL.

8 [2001] 1 AC 268 at 299, HL.

9 We completely disagree with the claim that private law should not be examined in terms of its function which has been advanced by Weinrib, E The Idea of Privare Law (Cambridge (US): Harvard University Press, 1995)Google Scholar ch 1, a claim which has played a large role in legitimating the concern with abstract wrongs central to modem restitutionary jurisprudence. Rather than dispute this claim in the abstract, we leave the reader to reflect on the implications of this paper's concrete critique of abstract wrongs for Weinrib's position.

10 Cf Yorio, E ‘In Defence of Money Damages for Breach of Contract’ (1982) 82 Col LR 1365 CrossRefGoogle Scholar.

11 Wrotharn Park [1974] 1 WLR 798 at 811.

12 [1974] 1 WLR 798 at 812.

13 [1993] 1 WLR 1361, CA.

14 [1993] 1 WLR 1361 at 1369-1370, CA.

15 Blake [2001] 1 AC 268 at 283, n 2, HL.

16 On the general concept and various specific forms of literal enforcement see Remedies, n 1 above, pt 3.

17 Eg Societé des Industries Metallurgiques SA v Bronx Engineering Co Ltd [1975] 1 Lloyd's Rep 465, discussed in Remedies, n 1 above, pp 171-172. The most thoroughly analysed cases of this type are personal services contracts such as Lumley v Wagner (1852) 21 LJ Ch 898, discussed in Remedies, n 1 above, pp 205-208.

18 Eg Co-operative Insurance Sociery Ltd v Argyll Stores Ltd [1998] AC 1, HL, discussed in the text accompanying n 138 below and in Remedies, n 1 above, pp 188-190, 224-226.

19 Eg Clea Shipping Corpn v Bulk Oil International Ltd (The Alaskan Trader) [1984] 1 All ER 129, discussed in Remedies, n 1 above, p 164.

20 Ruxley Electronics and Construction Ltd v Forsyth [1996] AC 344, HL, discussed in Remedies, n 1 above, pp 213-216.

21 [1974] 1 WLR 798 a t815.

22 [1998] Ch 439 at 457, CA.

23 Chancery Amendment Act 1858, s 2 (now Supreme Court Act 1981, s 50). discussed in Remedies, n 1 above. pp 488-49 1.

24 Jaggard v Sawyer [1995] 1 WLR 269 at 281H.

25 [1974] 1 WLR 798 at 811 D. See further Jolowicz, J A ‘Damages in Equity: A Study Of Lord Cairns'; Act’ [1975] CLJ 224 CrossRefGoogle Scholar.

26 The leading cases are Bracewell v Appleby [1975] Ch 408 and Jaggard v Sawyer [1995] 1 WLR 269.

27 Sharpe, R J and Waddams, S M ‘Damages for Lost Opportunity to Bargain’ (1982) 2 OJLS 290 CrossRefGoogle Scholar.

28 Surrey County Council v Bredero Homes Ltd [1992] 3 All ER 303 at 309, ChD.

29 Surrey County Council v Bredero Homes Ltd [1993] 1 WLR 1361 at 1368, CA.

30 Though we do not wish to discuss it here, in an interesting way it was because the law has so developed as to make the real performance interest remedy of a mandatory injunction unavailable in cases like Wrotham Park or Bredero Homes that we have ended up with Blake. On the discretion to award injunctions in property cases see Remedies, n 1 above,

31 [1974] 1 WLR 798 at 809.

32 [1980] AC 367 at 400. However, at 400 their Lordships excluded from this general principle those ‘cases where damages could not be claimed at all at common law’. Though their Lordships would appear to have some exceptional cases other than Wrotham Park damages in mind (Wrotham Park was not cited), whether those damages should be awarded is a matter which it is open to decide on its substantive merits: Jaggard v Sawyer [I9951 1 WLR 269 at 290-29 1.

33 [1993] 1 WLR 1361 at 1366-1367, CA.

34 [1993] 1 WLR 1361 at 1369, CA.

35 [2001] 1 AC 268 at 283, CA. Cf [ 19981 Ch 439 at 457, CA.

36 Waddarns, S M ‘Profits Derived from Breach of Contract: Damages or Restitution?’ (1997) 11 J Contract Law 115 Google Scholar.

37 Tito v Waddell [1977] Ch 106 at 332.

38 L L Fuller and W R Perdue Jr ‘The Reliance Interest in Contract Damages’ (1936) 46 Yale LJ 52 and 373.

39 Surrey County Council v Bredero Homes Ltd [1993] 1 WLR 1361 at 1369, CA.

40 [I9931 1 WLR 1361 at 1369, 1369, CA.

41 M Chen-Wishart ‘Restitutionary Damages for Breach of Contract’ (1998) 114 LQR 363. To the extent that it attempts to defend the analysis of hypothetical release damages as compensatory ([2001] I AC 268 at 298, HL), we believe that, with respect, Lord Hobhouse's dissent is unsustainable. However, this does not affect the strength of his criticism of the restitutionary position

42 Pace G Virgo The Principles of the Law of Restitution (Oxford: Clarendon Press, 1999) p 449, which is both so enthused by the extension of restitution yet so troubled by the possible reach of Blake that it quibbles that the restitution point in Blake is obiter!

43 [2001] 1 AC 268, HL(E) at 2848.

44 After this paper was drafted, in what seems to be the first commercial case which seeks to take advantage of Blake - Esso Petroleum Company Ltd LJ NIAD Ltd, (22 November 200 I , unreported), ChD - the claimant franchisor did not seek literal enforcement but sought a declaration that it was entitled to (one of two measures of) disgorgement of the defendant franchisee's unjust enrichment following breach (which the claimant would then compare with the damages available on a compensatory basis before electing one). This award of restitutionary damages when literal enforcement (and the possible arguments against granting it) was not even considered effectively extended the franchisee's obligation of good faith in a franchise contract. As this was done without any consideration of the issues raised most recently in J M Paterson, ‘Good Faith in Commercial Contracts? A Franchising Case Study’ (2001) 29 Aus Business Law Rev 270, it may well prove to be an example of the sort of ill-considered extension of good faith against which we have been counselled by M G Bridge, ‘Does Anglo-Canadian Contract Law Need a Doctrine of Good Faith’ (1 984) 9 Can J Business Law 385,426, though by a means Bridge did not envisage. We are grateful to James Devenney for bringing this case to our early attention.

45 [2001] 1 AC 268 at 285, HL.

46 [2001] 1 AC 268 at 285, HL.

47 [2001] 1 AC 268 at 291, HL.

48 L D Smith ‘Disgorgement of the Profits of Breach of Contract: Property, Contract and “Efficient Breach”’ (1995) 24 Can Business Law Rev 121.

49 (1897-8) 25 SC 661 at 672-673; affimed on this point [ 18991 AC45 1 at 467-468, HL(Sc).

50 [ 19981 Ch 439 at 459, CA and [2001] 1 AC 268 at 286, CA.

51 G Jones ‘The Recovery of Benefits Gained from a Breach of Contract’ (1983) 99 LQR 443 at 444,453.

52 D Campbell ‘The Treatment of Teacher v Calder in A-G v Blake’ (2002) 65 MLR 256.

53 Friedmann, n 5 above, at 629. Cf Friedmann's criticism of efficient breach: D Friedmann ‘The Efficient Breach Fallacy’ (1989) 18 J Legal Studies 1.

54 D Fox ‘Restitutionary Damages to Deter Breach of Contract’ [2001] CLJ 33.

55 E A Farnsworth ‘Legal Remedies for Breach of Contract’ (1970) 70 Col LJ 1145 at 1216.

56 Birks, n 4 above, p 24.

57 Friedmann, n 5 above, at 629-632.

58 And thus complex defences not needed when liability is compensatory multiply: M G Bridge ‘Restitution and Retrospective Law’ (1999) 14 J Int Banking and Financial Law 5 at 8.

59 H Collins Regulating Contracts (Oxford: Oxford University Press, 1999) ch 6.

60 It is essential to bear in mind, however, that the defendant's calculation of the prospective gains from breach may very well extend beyond the horizon of the specific contract which the defendant may consider breaching. There is a strong extra-legal incentive on the defendant to maintain his business reputation so that others (the other party to the contract and third parties aware of his conduct) will do business with him in the future, either by continuing in a long-term relationship or by reaching new agreements with him: ibid, 129- 13 1. We will concentrate on the position created by the formal position.

61 This is, of course, Holmes’ argument: 0 W Holmes The Common Law (Boston (US): Little, Brown and Co, 1881) p 301. In the light of our analysis of the positive value of breach, it is quite wrong to see Holmes’ analysis as an endorsement of a cynical attitude towards performance; it is rather an endorsement of the positive use of breach: D Campbell, ‘Breach and Penalty as Contractual Norm and Contractual Anomie’ [2001] Wis LR 68 1 at 690.

62 C J Goetz and R E Scott, ‘The Mitigation Principle: Toward a General Theory of Contractual Obligation’ (1983) 69 Vir LR 967 at 972-73.

63 See n 76 below.

64 [1843-601 All ER Rep 383.

65 E G Andersen ‘Good Faith in the Enforcement of Contracts’ (1988) 73 Iowa LR 299 at 306. One might say that the first, compensation, principle of damages is supplemented by a second, efficiency, principle, in an instance of the common law's combination of compensation and efficiency discussed in Cooter's seminal article: R Cooter ‘Unity in Tort, Contract and Property: The Model of Precaution’ (1985) 73 Calif LR 1 at 1.

66 Eg [2001] 1 AC 268 at 278, HL. Cf P Birks ‘Restitutionary Damages for Breach of Contract: Snepp and the Fusion of Law and Equity’ [ 19871 Lloyd's MCLQ 421 and Jones, n 51 above.

67 The, as it were, opposite error to attempting to fashion remedies to make obligations to perform absolute is to strike out legitimate contract modifications, and, of course, this has been the main ground on which it is agreed that the classical law of contract has failed. See also the text accompanying n 152 below.

68 This is the thrust of the US doctrine of ‘bad faith’ breach of contract discussed in Remedies, n 1 above, pp 604-606.

69 Patton v Mid-continent Systems Inc 841 F 2d 742 at 750 (1988).

70 Above n 38, at 53-54.

71 As is explained in Restatement (Contracts) 2d, sec 344 comment a, restitution is subsidiary to expectation because, being based on the defendant disgorging a gain, it cannot smoothly embrace the claimant's lost expectation of future surplus, which is the main issue. Returning an advance payment will not fully protect expectation if the price of the goods has risen. It cannot sometimes match a ‘pure reliance’ claim, as when the advance payment was to a third party not in breach. We will not address the complicated attempts that have been made to allow restitution to deal with this.

72 Dawood Lrd v Heath (Esr 1927) Lid [ I96 1 ] 2 Lloyd's Rep 5 I2 at 5 18 is a perfect example discussed in Remedies, n 1 above, p 235.

73 Birks, n 4 above, pp 22-24. There are other ways in which this concept has been established in the restitutionary classification of obligations.

74 24 P (2d) 570 at 578 (l933), discussed in Remedies, n 1 above, pp 238-241.

75 Birks, n 4 above, pp 39-44.

76 M Jackman ‘Restitution for Wrongs’ [ 19891 CU 302 at 302. Jackman puts some flesh on the idea of a bare wrong with his interesting argument that widespread breach will bring about the ‘institutional harm’ of erosion of confidence in the institution of promising. Without wishing to deprecate this concrete argument, there is a substantial social scientific literature on this point to which Jackman should have made reference, the gist of which is that the ‘organic’ social solidarity of the capitalist economy dcxs not require the ‘mechanical’ enforcement of obligations, particularly Durkheim's seminal analysis which is based on detailed claims about the nature of the law of contract: E Durkheim The Division ofhbour in Societ?, (London: Macmillan, 1984) ch 7. Within the legal literature see J H Gebhardt ‘Pacta Sunr Servanda’ (1 947) 10 MLR 161. From our own understanding of this literature, supported by takmg the existing shape of the law seriously, we conclude that in the ‘high trust’ established capitalist economies, a flexible attitude to breach may be taken; but the attempt to encourage normal commercial practices in the putative capitalist economies may, absent this trust, be very problematic: Campbell, n 6 I above, at 687-691.

77 [2001] I AC 268 at 277, HL.

78 [2001] 1 AC 268 at 293, HL.

79 Above n 17.

80 Halifax Building Society v Thomas [1996] Ch 217 at 227.

81 Pace N J McBride and P McGrath ‘The Nature of Restitution’ (1995) 15 OJLS 33.

82 [I9741 1 WLR 798 at 815-816.

83 Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548.

84 Halifar Building Society v Thomas [ 19961 Ch 217 at 229.

85 Remedies, n 1 above, pp 49 1-494.

86 Cf P Birks Butterworths Lectures 1990-1991 (London: Butterworths, 1992) p 87.

87 [2001] 1 AC 268 at 284, HL.

88 Regier v Campbell-Stuart [ 19391 Ch 766.

89 Printers and Finishers Ltd v Holloway [ 19651 1 WLR 1. The breach of a fiduciary civil law duty is referred to in Blake [2001] 1 AC 268 at 280, HL.

90 On some of the cases where this element is tortious such as trespass to land or chattels, deceit or passing off see Remedies, n 1 above, pp 520-572.

91 S Worthington ‘Reconsidering Disgorgement for Wrongs’ (1999) 62 MLR 218.

92 [1963] 1 Lloyd's Rep 359; cited in Blake [2001] 1 AC 268 at 278, HL and discussed in Remedies, n 1 above. pp 527-528.

93 [2001] 1 AC 268 at 295, HL.

94 Jaggard v Suwyer [ 19951 1 WLR 269 at 282-283. See also Bracewell v Appleby [ 19751 Ch 408 at 416 and Deakins v Hookings [1994] 1 EGLR 191 at 196.

95 [1974] 1 WLR 798 at 815-816.

96 The problem of placing the claimant in a very strong position by the grant of an injunction has long been recognised, and great moderation has been exercised in the quantification of damages granted in lieu: Isenberg v East India House Estate Co Ltd (1863) 46 ER 637 at 641, discussed in Remedies, n 1 above, pp 492-494.

97 Sale of Goods Act 1979, s 8(2).

98 Campbell, n 52 above, at 266-267 and see further the discussion in Remedies, n 1 above, pp 488-494.

99 These remarks about the arbitrariness of hypothetical release quantification apply a fortiori to the ‘loss of amenity’ award in Ruxley and to the wider use of distress and disappointment damages which Lord Steyn seeks to link to this in Farley v Skinner [2001] 3 WLR 899 at 910-91 1. See the discussion in Remedies, n 1 above, pp 214-215,594-603.

100 Non-pecuniary damages have been recovered for the breach of contracts for the sale of a car: see Jackson v Chrysler Acceptances [ 19781 RTR 414 and Bernstein v Pamson Motors (Golders Green) Ltd [ 19871 2 All ER 220. The former can be interpreted as a holiday case, and was so interpreted when approvingly cited by Lord Steyn in Farley v Skinner [2001] 3 WLR 899 at 907. But it is possible to argue that Jackson and Bemstein, as consumer cases, display the common ratio that a contract for the purchase of a car by a consumer can be said to be one where the essence of the contract is the provision of pleasure. However, this argument surely must mean that these cases hold out the possibility that the provision of pleasure may be identified to all or at least a great many sales of goods to consumers: see P S Atiyah et al The Sale ofGoods (London: Pitman, 10th edn, 2001) pp 551-552. This is a possibility that must be handled with extreme caution. If this sort of liability (and the legal costs of establishing it) was ever found to be a normal part of sales of goods, it might prove that the consequences of this could not be minimised by the seller explicitly excluding this liability because of the regulation of ‘unfair’ clauses. For these reasons, the pricing of consumer goods might therefore be radically shifted in ways courts acting on their own initiative cannot possibly understand or evaluate. We are grateful to Roger Halson for alerting us to the significance of these cases.

101 Since drafting this we have seen the following in Hedley, n 6 above, p 1 18: ‘Very far from being a solution to a general deficiency in the legal system, the concept of “recovery of profits from wrongs” is in fact a solution for which no problem currently exists’.

102 D Hams ‘Contract as Promise’ (1983) 3 Int Rev Law and Economics 69 at 72.

103 I R Macneil ‘Efficient Breach of Contract: Circles in the Sky’ (1982) 68 Vir LR 947.

104 Remedies, n 1 above, pt 3.

105 S Macaulay ‘An Empirical View of Contract’ [ 19851 Wis LR 465,470. Cf I R Macneil ‘Essays on the Nature of Contract’ (1980) 10 S Carolina Central LJ 159 at 183- 184.

106 S Macaulay ‘The Reliance Interest and the World Outside the Law Schools’ Doors’ [ 19911 Wis LR 247 at 249-257. Cf P S Atiyah ‘The Liberal Theory of Contract’ in P S Atiyah (ed) Essays on Contruct(0xford: Clarendon Press, rev edn, 1990) pp 121, 124-125.

107 See the text accompanying n 128 below.

108 [1998] Ch 439 at 458.

109 Lord Nicholls and Lord Steyn both withdrew from these grounds in the House of Lords ([2001] 1 AC 268 at 277,291, HL); perhaps part of the onset of restitution's postheroic phase: see n 6 above. Nevertheless, the importance of these situations in the overall restitutionary argument, and the likelihood they will be revived, is not, in our opinion, ultimately affected by what we believe was merely a tactical retreat from the point of view of advancing that argument. These grounds were seized on in the latest revision of Halsbuty's Laws ofEngland (4th edn reissue, 1998) vol 12(l), para 1000, which has a strong affinity with the Court of Appeal judgment. The usual format of Halsbury, which in this case took the form of a recitation of a (compensatory) principle followed by a longer list of recognised and possible (restitutionary) exceptions, clearly invited the further development of these ‘exceptions’; and, as such, was perhaps a little premature. However, that the defendant ‘did the very thing it contracted not to do’ was decisive in Esso Petroleum Company Ltd v NIAD Ltd (22 November 2001, unreported) ChD, para 60.

110 Pace B Coote ‘Contract Damages, Ruxley, and the Performance Interest’ [ 19971 CLJ 537.

111 On the current views of those in practice on this matter see I E Jacob ‘Is Near Enough Good Enough?’ (1995) 139 Sol Jo 676 at 677. Mr Jacob was Mr Forsyth's counsel in Ruxley.

112 I Ayres and R Gertner ‘Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules’ (1989) 94 Yale LJ 97.

113 Cf the majority opinion in Jacob and Youngs Inc v Kent 129 NE 889 (1921).

114 Goff and Jones, n 4 above, pp 5- 1 I.

115 Cf the explanation of the first and second rules in Hadley v Barendale as establishing a default rule for the allocation of risk which is variable by negotiations in which notice of the extra liability must be given to the defendant.

116 Subject to the present rules preventing, sometimes quite wrongly, the stipulation of damages.

117 Coote, n 1 10 above, at 544. (This example had been independently suggested to us by Ken Oliphant.) Though Coote's analysis of Ruxley intends to establish the value of the performance interest, it concedes the point we have made. Coote concludes that cost to complete would have been granted in cases such as that of his Olympic diver, and so indeed it may; but the whole point is that this would not then have been the contract in Ruxley.

118 Cooter, n 65 above, at 11-19.

119 G H Treitel Law of Contract (London: Sweet & Maxwell, 10th edn, 1999) p 869.

120 Whirwood Chemical Co v Hurdmun [ 189 I ] 2 Ch 4 16 at 426: ‘If I agree with a man to be at a certain place at a certain time, I impliedly agree that I will not be anywhere else at the same time’. On the general issue of distinguishing negative and positive undertakings see Remedies, n 1 above, pp 200-208.

121 Cooter, n 65 above, at 13.

122 Cf D Patterson ‘The Pseudo-debate Over Default Rules in Contract Law‘(1993) 3 S Calif Interdisciplinary LJ 235.

123 R A Epstein ‘Beyond Foreseeability: Consequential Damages in the Law of Contract’ (1989) 18 J Legal Studies 105 at 106.

124 Epstein, n 123 above, at 108.

125 Lord Steyn's argument for the wider use of distress and disappointment damages in Furley v Skinner [2001] 3 WLR 899 is strongly influenced (at 909) by D Capper ‘Damages for Distress and Disappointment: The Limits of Wutrs v Morrow’ (2000) 116 LQR 553 at 556, which allows that ‘if [D] is unwilling to accept this responsibility he or she can say so and either no contract will be made or one will be made but including a disclaimer’. Though we do not agree with this argument, which does not consider the legal costs it will impose, it shows a welcome understanding of the working of default rules. But as it is a reversal of the current position, it is undermined by an absence of a similar understanding of the illegitimacy of changing the law without any attempt to determine whether affected parties want it changed or telling them in advance what is to happen. Capper also gives no consideration to the potentially extremely serious implications of the possibility that this liability might not be able to be excluded in consumer cases: see n 100 above.

126 Ayres and Gertner, n 112 above.

127 C Mitchell ‘Remedial Inadequacy in Contract and the Role of Restitutionary Damages’ (1999) 15 J Contract Law 133, 134.

128 J O’Sullivan ‘Loss and Gain at Greater Depth: The Implications of the Ruxley Decision’ in F D Rose (ed) Failure of Contracts (Oxford: Hart, 1997) pp 1,7.

129 Law Commission Law of Contract: Pecuniary Restitution on Breach of Contract, Report No 121 (1983) pp 36-37 (note of dissent by Brian Davenport QC), discussed in Remedies, n 1 above, pp 45-48.

130 On the difficulties of consumers exercising their private law remedies see Remedies, n 1 above, pp 27-3 1.65-70.

131 See Capper, n 125 above.

132 In the US literature, the case for general specific performance has not been argued on the grounds of securing more complete performances but on the grounds of reducing the transaction costs of (re)negotiating contracts when the defendant contemplates breach or breaches: A Schwartz ‘The Case for Specific Performance’ (1979) 89 Yale LJ 27 1. Though we do not agree with this argument, it is not directly touched by this paper.

133 On the evidence of the reported cases see the text associated with n 77 above.

134 R Nolan ‘Remedies for Breach of Contract: Specific Enforcement and Restitution’ in Rose (ed), n 128 above, pp 35,59. Crucial ancillary questions would have to be addressed if one really did wish to make performance strict. Eg should more promisees than at present be given access to the coercive powers of the state via contempt proceedings? Should more promisors be deprived of the potential protection of insolvency law (which is available in respect of debt or damages), and, in the event of their insolvency, should more promisees gain priority over the other creditors of promisors?

135 White and Carter (Councils) Ltd v McCregor [ 19621 AC 41 3 at 43 1 and The Alaskan Trader [ 19841 1 All ER 129.

136 Ruxley Electronics and Construction Ltd v Forsyth [ 19961 AC 344, HL.

137 Of course, as the same issue raised by the different forms of literal enforcement is treated differently in each case, the law should be unified.

138 Millet U's views were broadly accepted by the House of Lords when it reversed the Court of Appeal's decision: Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1, HL.

139 Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [ 19961 Ch 287 at 304, CA.

140 [1996] Ch 287 at 301, CA.

141 [ 19961 Ch 287 at 295, CA.

142 [ 19961 Ch 287 at 295-296.299. Cf [ 19981 AC 1 at 18, HL. 143. Counsel for the claimant allowed that specific performance could have driven the defendant into insolvency: [ 19981 AC 1 at 19A, HL. It must be recalled that the defendant was not pleading common mistake or frustration, and so seeking to refuse to perform without liability, but acknowledged liability in damages.

144 [1998] AC 1 at 11-16, HL.

145 [ 19961 Ch 287 at 304, HL.

146 [ 19961 Ch 287 at 305, HL. 147. [ 19961 Ch 287 at 305, CA, emphasis added.

148 E A Farnsworth ‘Your Loss or My Gain? The Dilemma of the Disgorgement Principle in Breach of Contract’ (1985) 94 Yale LJ 1339.

149 D Harris ‘Incentives to Perform, or Break, Contracts’ (1992) 45(2) Current Legal Problems 29.

150 And, of course, adjudication which respects such advice.

151 This is so to the extent that the advice remains confined to the general principles of contract, but, of course, a sufficiently important client will be referred to the whole repertoire of techniques for getting greater security of performance as a separate matter of ‘commercial law’. The extent of the error of treating commercial law separately from the general principles of contract is made evident in the notion of the performance interest. Still markedly the best attempt to integrate commercial law mechanisms into a restatement of the general principles of contract is I R Macneil, ‘A Primer of Contract Planning’ (1975) 48 S Calif LR 627.

152 Coote, n 1 10 above, at 542. Even within the academic literature see contra the acutely perceptive Gebhardt, n 76 above.

153 For but one example of the formal statement of this principle immediately followed by a wholly justified departure from it, see Ruxley Electronics and Construction Ltd v Forsyth [ 19961 AC 344 at 360, HL, per Lord Mustill. Lord Steyn tries to reinterpret Lord Mustill's speech so as to take this phrase seriously in Farley v Skinner [2001] 3 WLR 899 at 908.

154 D Campbell ‘Classification and the Crisis of the Common Law’ (1999) 26 J Law and Society 369 at 311.

155 R O’Dair ‘Restitutionary Damages for Breach of Contract and the Theory of Efficient Breach: Some Reflections’ (1993) 46(2) Current Legal Problems 113 does weigh the alternatives to reach the opposite conclusion to the one advanced here.