Duties and Damages

Abstract

Abstract This essay looks at the relationship between primary and secondary duties. If I breach a duty I owe to you, the law’s standard response is that I must pay you damages for such losses as I thereby cause. Some have thought that we understand what duties we owe only by looking to the sanctions the law imposes in the event of “default”: if all the law will compel me to do is to pay you damages, this is the sum of my duty to you. But the truth is that the content of these sanctions tells us little to nothing about these duties; the question of how I should conduct myself in my dealings with you is simply different to the question of what action the law should take if I do not do as I should. So, just as our legal duties cannot be read off from the law’s sanctions, so we should not think that the law falls short when it fails to compel performance, or such performance as remains possible, of our duties. But while looking to the content of my duty does not tell us how the law should respond to its breach, the considerations which ground that initial duty may shed light on this question. How much light? In the final sections, I offer some reasons for doubting whether the basis of our secondary duties is always, or even commonly, to be found in the considerations which ground the relevant primary duty.