계약의 도덕성의 의미 ― Seana Valentine Shiffrin의 효율적 계약파기론 비판을 중심으로 ―

The main subject of this Article is two influential theories about contract remedies: Seana Shiffrin’s argument that contract law diverges problematically from promissory morality, and Markovits and Schwartz’s recent defense of expectation damages. Both has been trying to explain the theoretical framework for thinking about contract remedies The concept of “efficient breach” is the most famous and influential in the economic analysis of contract law. But it is certainly the most controversial. Markovits and Schwartz’s argue that the criticism from deontological ethics is misplaced, and that efficient breach theory, properly understood, is consistent with deontological obligations. But Shiffrin’s Divergence theory may refute Markovits and Schwartz’s argument effectively and be able to explain the intuitive resistance that most people experience to the concept. It is necessary to refer to Virtue Ethics. As Shiffrin emphasized, failing to complete a contractual relationship is not conducive to virtuous character or to the maintenance of a flourishing community. While efficient breach can overcome deontological ethics, it cannot be justified by virtue ethics unless one is prepared to argue that seeking efficiency is a virtue, or at least that it is not a vice.