The “Performance Interest” in Contract Law

Abstract

The “rabbit-duck” optical illusion is a famous instance of something which can be seen as one of two things, depending on how you view it: a rabbit or a duck. In this chapter, I suggest that the common law of contract in Australia has its own “rabbit-duck” problem created by the varying ways in which courts respond to a breach of contract. The overarching norm of contract law is the autonomy and freedom of contract: but this encompasses both the freedom to enter into a contract and to bind one’s self to a promise, and the freedom to breach the contract if circumstances change.