Self-Help and Contract Law's "Duty" to Mitigate

How far should the law let you go in resolving conflict on your own? Plainly, it should let you defend your property with fences, doors, and locks. Nobody wants to live in a world where bums can camp in your living room until you win a court order evicting them. At the other extreme, though, the law sensibly disapproves of resolving cable bill disputes via mortar attack (appealing though that may sound).

Legal academics classify these as questions of the permissible scope of self-help. I've written about the topic in such papers as Free Speech, Strict Scrutiny, and Self-Help: How Technology Upgrades Constitutional Jurisprudence, 87 U. Minn. L. Rev. 743 (2003), Escape from Copyright: Market Success vs. Statutory Failure in the Protection of Expressive Works, 69 U. Cin. L. Rev. 741 (2001), and in the infamously but accurately titled, Pornography, Privacy, and Digital Self-Help, 19 John Marshall J. Comp. & Info. L. 133 (2000), all of which you can find here. I suppose because he recognized my interest in the topic, fellow law prof Doug Lichtman recently shared with me his interesting draft paper about the role of self-help in the law of free speech, copyright, trade secret, and other areas. Because I don't see that paper listed among his publicly-available works-in-progress, I won't say anything more about it now except to suggest that you keep an eye out for it. I will, though, share some thoughts that occurred to me while Doug and I corresponded about the role that self-help plays in contract law.

Contract law shows respect for self-help in a number of ways. Consider the so-called "duty" to mitigate or avoid damages. (I use scare quotes because the doctrine does not really impose a duty; rather, it merely bars recovery of damages that the plaintiff suffering breach might reasonably have avoided.) As the Restatement (2d) of Contracts, § 350(1) puts it, "damages are not recoverable for loss that the injured party could have avoided without undue risk, burden or humiliation." See also U.C.C. §§ 2-706 (providing that a seller may sell to a third party goods that a breaching buyer fails to accept); 2-712 (providing that a buyer may "cover" a seller's breach); 2-708 (basing seller's damages on difference between contract price and resale price); 2-713 (basing buyer's damages on difference between contract price and cover price).

In sum and in brief, contract law limits damages recoverable in court to those that reasonable self-help measures could not have prevented. That reflects a regard—indeed, an apparent preference—for self-help remedies. A party suffering breach of contract has not only permission to engage in self-help mitigating his or her damages, but a powerful incentive to so mitigate. A court will not, after all, afford a like remedy.

I'm quickly slipping into "contract law geek" mode, so I'll take a breather. I'll be back, though! When I return to the topic, I'll discuss how the contract law doctrine of foreseeability sends a somewhat mixed message about self-help.