Willful Breach • 173

Neither Groves nor Peevyhouse fi ts this description, however, because both promisors might very well have wanted to preserve their ability not to perform when cleanup of the land turned out to be very expensive and the effects of failing to clean up minimal. Hence, these are not the kind of breaches that the willfulness designation is calculated to prevent. Where the promisor does wish to bind himself ex ante not to breach, however, this rationale should hold, even if the promisee in fact suffered little or no idiosyncratic harm from the breach.

Conclusion

Not all intentional breaches are willful, and willful breaches are not especially injurious to promisees. Instead, they are breaches that promisors would want to commit themselves ex ante not to undertake. It follows that the remedy for such breaches is and should be the surrender of any gains they engender for the breaching promisor, even when this overcompensates the promisee. This remedy sustains promisors’ credible commitments not to breach in those circumstances where such commitments are valuable. Accordingly, the availability of this remedy for willful breach furthers the interests of all contracting parties, and particularly promisors, even when it exceeds promisee expectation.