Tag Archives: Rules

Expectation Damages and Reliance Damages

What do we do when our relationship expectations aren’t met? What happens when someone breaks a rule, violates an agreement, or otherwise doesn’t do what we legitimately expected them to do, and it harms us?

Expectation Damages vs. Reliance Damages

In the law, there are different kinds of damages that can be awarded based on the type of injury. When one party breaks a contract, typically the other party is awarded expectation damages. Expectation damages are meant to put the other party in the position they would have been in had the contract been fulfilled.

Imagine that I agreed to sell you my couch for $200. You rent a truck for $50 to transport it, but when you show up, I say I changed my mind and don’t want to sell. The cheapest comparable couch you can find costs $300 and will require another $50 truck rental to pick it up. Your expectation damages are $100. You expected to pay $200 and a $50 rental fee, and receive a couch. Instead, you paid $300 and a $50 rental fee to receive a couch, so you are $100 worse off than you would have been had I stuck to the deal.

Another type of damages that are typically awarded when expectation damages are difficult to estimate or when circumstances are more appropriate are reliance damages. Reliance damages are intended to put the injured party in the position they would have been in had the contract never been made in the first place.

In the couch example, your reliance damages are $50. If we had never made the contract, you never would have spent the $50 on the truck rental. You paid that $50 in reasonable reliance on my promise to sell you my couch. Because I broke my promise, you’re out $50. If I break the deal before you rent the truck, you don’t have any damages, since you’re in the same position you would otherwise be in.

In a business context, there are good reasons why we typically award expectation damages for breach of contract. Unless there is an opportunity for an efficient breach, we want to encourage people to stick to their deals. Business runs on deals, and rules that encourage people to break deals would increase uncertainty. Uncertainty is bad for business, so we favor rules that increase stability and predictability.

Relationship Damages

In a relationship context, most of the time, we won’t be talking about money, but I think it’s useful to consider the general magnitude of a person’s responsibility when trying to make amends. There’s a big difference between trying to make up for wasting an hour of your life vs. ruining your career, and the amends required are different.

I find reliance damages to be the more appropriate way to think about relationship injuries. When a person breaks a promise I think it’s extraordinarily helpful to consider the conceptual difference between (a) putting someone in the position they would be had the promise never been made (reliance damages) vs. (b) putting someone in the position they would be had the promise been fulfilled (expectation damages). I favor thinking in terms of reliance damages because it’s more autonomy-promoting. It encourages people to make amends for any damage they’ve caused, but it also encourages people to renegotiate their agreements if they’re no longer benefiting from them. The thinking behind expectation damages is that people should stick to their agreements and that people have a responsibility to make sure the other party gets the benefit of the bargain no matter what. The thinking behind reliance damages is that sometimes shit happens, and people’s responsibility is to make up for any damage they’ve caused.

Examples

Let’s consider a few examples of common broken promises in relationships:

(1) you flake on a date.
(2) you fail to do the dishes as promised.
(3) you cheat sexually.
(4) you divorce your partner (after vowing “till death do us part”).

In example (1), expectation damages would seek to put the person in the position they would have been had you showed up. So from that thinking, your moral responsibility would be to take your partner out on a date, whether you want to or not, because that’s what you promised. I’m not a fan of this solution, because I don’t think people should ever feel required to give social attention when they don’t want to. It’s a pillar of consent culture that nobody ever owes another person their social energy or attention, and our ethics ought to reflect that.

Reliance damages would seek to put the other person in the position they would have been in had you never promised to go on the date. If you back out soon enough, there really aren’t any damages, since the other person has time to make alternative plans. If not, you’ve ruined their evening, so it’s on you to make amends for that. It could mean taking them out on a different evening if that’s what you want to do, but it could also mean letting them borrow your Playstation so they’re not bored all evening. Or it could mean buying them a book or (if you live together) giving them control of the living room TV for the night. Thinking in terms of reliance damages give you options that don’t infringe on your autonomy.

Example (2) is interesting because expectation damages aren’t actually very problematic. You would just need to do the dishes that have been sitting in the sink all night. Most of the time, that’s a fine solution. It’s also interesting because there likely aren’t any reliance damages. If you didn’t promise to do the dishes, would the other person not have eaten? Would they have used paper plates? Probably not. It’s likely that the dishes would have been made no matter what, so really, the person is in the same position as if no promise was made.

So does that mean it’s ok to promise to do the dishes, then back out at the last minute? Of course not. What this indicates to me is that the issue with you not doing dishes isn’t that you said you would do them. The issue is that if you never do the dishes, you’re a jerk! If you did the dishes for the past three evenings, then I don’t think there’s a big problem with you saying that you’re not going to do them tonight. You shouldn’t have said you’d do them, but I don’t think you owe the other person anything if they’re just taking advantage of your helpful nature to get you to do the dishes every night. However, if you don’t do a fair share of the housework, that’s problem whether you’ve agreed to or not. So in this situation, I still think it’s appropriate to think in terms of reliance damages. This is just a good reminder that there are other considerations aside from just broken promises.

In example (3), expectation damages would seek to put the person in the position they would have been had you not cheated. This is what most people do in this situation. It involves things like getting tested for STI’s, breaking off the other relationship, assuring your partner that it won’t happen again, and completing some kind of probationary period where your actions get some extra scrutiny. While this can be a good solution if maintaining your current relationship is your only consideration, I don’t favor it as an ethical requirement. What if you’re in love with the other person? What if you don’t want to be monogamous anymore? What if your partner is controlling and this is the excuse they need to micromanage your life?

Reliance damages put the person in the position as if you never promised monogamy in the first place. This might mean breaking up, if your partner desires only monogamous relationships. It might mean that you decide to open your relationship (although this is a notoriously bad way to start an open relationship). It might mean doing all of the same things as expectation damages and making a new promise of monogamy, if that’s what you want and your partner trusts you to keep to your word (which they probably shouldn’t).

Example (4) truly shows the absurdity of expectation damages. Expectation damages, in this situation, would mean getting remarried. Unless you’re a fanatical believer in the sanctity of marriage, I think we can agree that there is no ethical requirement to get remarried once you get divorced.

Reliance damages mean putting the other person in the position they would have been had you never promised to stay with them forever. In a divorce, a lot of this can be financial. Did the rely on your financial support and stop pursuing a career? Pay spousal support. Did they rely on your financial assistance when deciding to have a child? Pay child support. Did they take out a mortgage with you? Either figure out a compromise or sell the house and pay off the mortgage. Non-financially, there was probably a lot of emotional damage done, so make up for that as best you can.

Conclusion

When you’ve broken a promise, you’ve probably done something wrong. But what is it? Most analysis tends to view the act of breaking the promise as the bad thing, but I tend to disagree. I think it promotes freedom and autonomy much more to see the bad thing as making the promise in the first place. If you find yourself so motivated to break a promise that you overcome the psychological difficulty in doing so, I think most of the time it’s fair to say that you inaccurately predicted your feelings. Had you known that you would not want to stick to the agreements, you probably wouldn’t have made it. So I think it’s best to see the promise as the mistake.

Adopting the thinking behind reliance damages helps all parties focus on the promise as the mistake, and seeks to rectify the situation by putting the injured party in the position they would have been had the promise never been made. I want people to do whatever they want, as much of the time as possible. That can’t happen if our ethical thinking encourages people to stick to agreements even when they are no longer benefiting from them. I’d much rather adopt ethical rules which encourage the breaking of agreements that shouldn’t have been made in the first place and merely obligate people to make amends for the harm they caused.

Breaking promises is bad. Traditional morality says to keep your promises no matter what. My advice is different. I say, don’t make promises that you won’t want to keep. If you do, then making the promise was your mistake, and you are responsible for any injuries cause by another person’s reasonable reliance on your promise.

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Should We Make Rules?

Last week, I posted about Why We Make Rules, the gist of which was that making formal commitments (in the form of agreeing to rules) adds a layer of psychological pressure to stick to the commitment. Doing so is useful only when we don’t trust the in-the-moment judgment of either ourselves or our partner(s).

To my surprise, a number of people (online and off) took this as an endorsement of rules. I was cited in a post by Rose at 50love.org entitled “In Defense of Rules.” Franklin Veaux, in response to my post, saw the value in making self-imposed rules, but talked about the danger of partners making and/or enforcing rules for each other:

One of the things that came up on that hashtag again and again, though, was the idea that abusers can gain power over their victims by making their victims doubt their own judgment. “You can’t be trusted.” “You don’t make good decisions.” “You mess things up.” “You have poor judgment.” “I have to make decisions for you or you’ll screw up.” “You’ll hurt me if I give you a chance.” I saw dozens of variations on this theme all through the hashtag. And it got me to thinking.

“I will limit my behavior in this way because I know my in-the-moment decision skills are a bit crap” can be a reasonable approach to healthy boundary-setting. But I see the potential for abuse when it becomes “I want this rule because your decision-making skills are crap; you can’t be trusted to keep your commitments.”

I completely agree, and, in fact, thought this was implicit in my original post. I can’t imagine going to a partner and saying “we need this rule because your judgment sucks.” Or rather, I can imagine someone saying that privately, but not really admitting it publicly. So I was very surprised to see people using this idea as some sort of justification for partners making rules in relationships. To me, if it becomes necessary for me to say to a partner “I can’t trust you to make good decisions,” it’s time to end the relationship.

Franklin’s commenter Shelly made an important point about the difference between making rules and setting expectations:

In my experience, there isn’t much of a difference until someone actually breaks or challenges the rule. Then the difference is kind of huge. When you break a rule, you betray the other person or the relationship. In the aftermath, there is a clear moral victor, and there is a clear power differential. The “thumb on the scale,” the “just in case,” I believe speaks to this power differential. In case of emergency, let’s be really really clear who is wrong. In other words when you do something hurtful or disruptive, I need shame on my side in order to bring you back.

I believe that people who fight for rules instinctively feel a need to have this this power differential in place, and I expect it comes from a sense of personal powerlessness in most cases. Unfortunately, I agree that this kind of power differential, combined with shame, creates a fertile ground for abuse. However, in a “consequence”-based relationship, there is still a fundamental respect for the other person’s right and ability to make their own decisions. Even if those decisions are shitty or hurtful.

This really gets to the heart of the matter to me. Informing someone of the consequences for their behavior assumes that they are going to make their own decisions, using their own judgment. Informing them of the consequences just means that you’re giving them relevant information to make their decision. There is no moral judgment or condemnation, no matter what they choose, so long as they are willing to accept the consequences.

Rules are different. Rules set a required course of behavior, and any deviation from that behavior is considered “wrong.” As Shelly said, a rule-breaker has committed a betrayal, and there is a clear moral high ground.

Rose submits that rules are useful for two reasons:

  • “they give each party an opportunity to communicate honestly about fears, expectations, past experiences, and other factors of real life that affect the functioning of relationships”
  • “negotiating agreements with new and existing partners allows us to establish trust in one another.”

Certainly, if the alternative to making rules is to remain silent, then those are important functions of rules. Thankfully, though, that is not the case. The alternative to rules that I (and, to my understanding, Franklin) advocate is the process of expectation-setting, which accomplishes both goals without the attendant issues inherent in making rules.

Setting expectation involves simply communicating your needs, what you expect to do, and what you expect your partner to do in any given situation. This can also include things that you expect to do if your expectations are not met. This way, each party has an opportunity to talk about “fears, expectations, past experiences, and other factors of real life,” but doesn’t need to put any pressure on the other party.

It also gives partners an opportunity to develop trust. When there are no rules, partners are free to behave however they like. It gives partners a real chance to see how each will behave in the absence of any control measures (but still aware of how their actions will likely affect each other). Trust is then build when partners gradually learn that they genuinely want to treat each other well (or they learn the opposite and break up).

Rules can be useful if we make the decision to create them for our own behavior. As Franklin put it, “having my rational self place a restriction on my future, irrational self is a sensible, prudent thing to do.” But rules can be harmful when we try to control our partners’ behavior for our own benefit. Expectation-setting can create all of the benefits of rules without the attendant problems, and is a much better alternative.

Why We Make Rules

FOLLOWUP POST HERE: Should We Make Rules?

Rules are often debated in poly circles. Some partners love them. Some partners hate them. Most lie somewhere in between. Franklin Veaux Says:

If a person loves you and cherishes you, and wants to do right by you, then it’s not necessary to say “I forbid you to do thus-and-such” or “I require you to do thus-and-such.” All you really need to do is communicate what you need to feel taken care of, and your partner will choose to do things that take care of you, without being compelled to.

On the other hand, if your partner doesn’t love and cherish you, and doesn’t want to do right by you…well, no rule will save you. The rules might give you an illusion of safety, but they won’t really protect you.

This is true… to a point. No rule can prevent someone who is determined from doing harm. However, it may overstate the case a bit. There is good psychological research to suggest that the act of committing to follow a rule will actually make a person more motivated to follow it.

Robert Cialdini, in his landmark book Influence, describes a process that people have called “consistency drive.” Wikipedia summarizes:

If people commit, orally or in writing, to an idea or goal, they are more likely to honor that commitment because of establishing that idea or goal as being congruent with their self-image. Even if the original incentive or motivation is removed after they have already agreed, they will continue to honor the agreement.

If all parties could be confident that the original incentive/motivation for the behavior would continue, the commitment would be unnecessary. Making a commitment presupposed that, at some point in the future, one or both parties may be motivated to behave in ways inconsistent with the commitment. The commitment is there to keep those impulses in check. Cialdini sees two reasons for this:

“I think there are two factors behind consistency,” Cialdini says. “One is the desire to be consistent with what we’ve already done. If you see yourself doing something, it’s only in keeping with what you’ve already done, to do something that is likewise congruent with those actions. We like to be consistent. The second thing related to this is, when you see yourself doing even a small act in favor of a particular cause or issue, you come to see yourself as somebody who actually does favor this idea.”

The concept of consistency is often used in the marketing field. Getting someone to commit to a small purchase or show of support will enable a skilled marketer to obtain a much larger purchase or show of support later, as people are driven to be consistent with their prior actions. It’s a powerful tool:

Take, for example, a problem faced by most any manager: An employee who never makes it to work on time.

The key would be to not only discuss the problem with the employee, but also get the employee to put down, in writing, why arriving at the office at the appointed time is consistent with something he or she values at work. By doing so, the employee would have made an active, public and voluntary commitment, and the signed paper would create a sense of obligation far stronger than a simple verbal agreement could.

So by making a commitment, we create a sense of obligation in our own minds to stick to the commitment, even if, on a more conscious level, we no longer want to.

This is exactly the point of making rules, and why I find Franklin’s statement above somewhat misleading. Without a rule, a person would do their own analysis regarding whether to take an action, weighing the pros and cons, factoring in the effects on other people, and making a decision. A rule puts a thumb on the scale, weighing the analysis in favor of the prior commitment.

For some people, this is fine. Some people don’t trust their in-the-moment decision making, so they feel the need to commit to a course of action ahead of time. This is especially effective with safer sex rules. It’s common for a person to feel that, in the moment, they may be tempted to forego safer sex practices, and so they (and their partner(s)) make a rule in order to give them some extra motivation in the moment.

Rules become dangerous, however, when they start being put in place for emotional reasons. Because rules operate to create psychological pressure to make certain decisions, rules can easily become coercive. Sometimes what we want changes, and if there are rules in place against what we want, we can feel trapped or repressed.

The other thing to remember about rules is that they are only for situations in which we don’t trust our in-the-moment judgment. If we trust our judgment, it’s far better to make the decision as late as possible, so we make the decision at the moment when we have the most information. Things (including our needs and desires) could have changed in the meantime, we may have additional information, or we may just be in a situation that we didn’t anticipate. If we are able to exercise good judgment, we will make better decisions if we refrain from making our decisions in advance (by making rules).

This is why some poly people have a distaste for rules. When you make a rule (or agreement) with your partner, you’re saying that you don’t trust them to make the correct in-the-moment decision without it. Your lack of trust may be completely reasonable, but it can still sting.

I don’t have rules in my relationships because I prefer to only have close relationships with people whose judgment I can trust when it comes to making decisions about what they are going to do. When I feel the impulse to make a rule or agreement, I take that as an indication that I’m feeling distrustful, and explore that. Most of the time, I find that if I adequately express my desires or expectations, the mistrustful feeling goes away, but sometimes it is indicative of a bigger issue.

Regardless, rules serve a function for those who choose to use them. They provide additional psychological encouragement to choose the agreed-upon path. Used well, rules can be an important check on our impulsive actions. Used less well, they can be an oppressive control mechanism.