For What Must We Pay? Causation and Counterfactual Baselines.

This article focuses on causation and counterfactual baselines in compensation. The difference between tort and contract liability lies in the different bases of the primary obligation breached by a defendant. In tort, that obligation is nonpromise-based, whereas in contract, the obligation arises out of the defendant's promise. Increasingly, contract law has eliminated any distinction between misfeasance and nonfeasance by treating all cases as instances of misfeasance. The notion of unjust enrichment cuts across torts, contracts, property, and even criminal law.