The disjunctive theory of contractual obligations vs contract law

Matthew Beamish
(2026) 40 Journal of Contract Law 107

Matthew Beamish, ‘The disjunctive theory of contractual obligations vs contract law’ (2026) 40 Journal of Contract Law 107

Abstract

The disjunctive theory is an attempt to explain why damages are the primary remedy for breach of contract. Contractual obligations, we are told, are obligations either to trade goods or services or to transfer money; awards of damages are direct enforcement of promises to pay. Though its adherents tend to justify it on normative grounds, they also claim consistency with doctrine. The claim is spurious. There are numerous fatal doctrinal objections to the theory; many its proponents fail to consider; those they do consider they answer unsatisfactorily. The ultimate test for the truth of a theory of contract law is contract law. If we find repeatedly that the disjunctive theory, if true, would require fundamental doctrines to be other than what they are, we have overwhelming evidence that it is false. That it might have been normatively justified if it had been true does not make it any less false.