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From Personal Life to Private Law$
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John Gardner

Print publication date: 2018

Print ISBN-13: 9780198818755

Published to Oxford Scholarship Online: May 2018

DOI: 10.1093/oso/9780198818755.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 07 May 2021

Say It with Flowers

Say It with Flowers

(p.125) 4 Say It with Flowers
From Personal Life to Private Law

John Gardner

Oxford University Press

This chapter continues the investigation of remedies for wrongdoing. It focuses on the deficit (or ‘remainder’) that is inevitably left when a fallback duty is performed according to the principle defended in the previous chapter. It explores the traces that the remainder leaves in the feelings of the wrongdoer, and asks whether, all else being equal, the wrongdoer has reason to express these feelings. The answer is negative. But the expression of the feelings, for example in a heartfelt apology, is nevertheless rationally intelligible. This may seem a long way from the concerns of private law, but it is not. It explains the ‘placebo effect’ that apologies may have, even when not heartfelt, and that explanation carries over into the explanation of money payments in damages that are not literally reparative, such as ‘general’ damages for bereavement or loss of companionship.

Keywords:   fallback duty, reparation, duty of repair, placebo effect, remedies for wrongdoing, remainder

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