But
if the conveyance is more important than the time, and the
promisee prefers to have it late rather than never, the law may
compel the performance of [301] that. Not literally compel even
in that case, however, but put the promisor in prison unless he
will convey. This remedy is an exceptional one. The only
universal consequence of a legally binding promise is, that the
law makes the promisor pay damages if the promised event does not
come to pass. In every case it leaves him free from interference
until the time for fulfilment has gone by, and therefore free to
break his contract if he chooses.
A more practical advantage in looking at a contract as the taking
of a risk is to be found in the light which it throws upon the
measure of damages. If a breach of contract were regarded in the
same light as a tort, it would seem that if, in the course of
performance of the contract the promisor should be notified of
any particular consequence which would result from its not being
performed, he should be held liable for that consequence in the
event of non-performance. Such a suggestion has been made. /1/
But it has not been accepted as the law. On the contrary,
according to the opinion of a very able judge, which seems to be
generally followed, notice, even at the time of making the
contract, of special circumstances out of which special damages
would arise in case of breach, is not sufficient unless the
assumption of that risk is to be taken as having fairly entered
into the contract.
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