Beyond Deception : Finding Prudential Boundaries between Breach of Contract and Deceptive Trade Practice Act Violations in Wisconsin

It has been said that the law of contracts is an abstraction, a residual component destined to disappear among advancing bodies of other law. Commentators have identified the swift progression of regulation, uniform codes, and statutory law as the driving force in obviating the common law of contracts. Wisconsin is currently in the midst of wrestling with this exact issue; that is, the destiny of contracts and contract law. Wisconsin, by adopting a strong economic loss doctrine, has shown particular distaste for the immersion of tort and contract, but the Wisconsin Supreme Court's economic loss jurisprudence does not similarly foreclose the potential for statutory law to replace the role of contracts. The court has indicated that facts giving rise to a breach of contract claim may also support recovery under the state's Deceptive Trade Practices Act (the DTPA). Thus, while the distinction between contract and tort law grows crisper, that between contract and statutory causes of action is becoming significantly more blurry.The “freedom to contract” principle permits parties to voluntarily adjust their rights and responsibilities by specifying their own terms to which they can expect to be bound. The law, recognizing the societal value in enforcing contracts, makes it difficult for a party to escape its promises once the contract is made. However, by allowing recovery for breach of contract under the DTPA, the supreme court has made it significantly easier for parties to “opt out” of their contract's terms just by asserting a DTPA claim. Therefore, the extent to which courts will apply and enforce the DTPA over contracts will have a dramatic effect on parties' ability to escape the terms of their agreements ex post facto.The thesis of this Comment is that, for the benefit of our contract-based system of economic exchange, prudential boundaries between ordinary contract disputes and DTPA violations are needed in order to preserve the difference between the two. By setting aside valid, freely bargained for contracts in order to enforce the DTPA, the supreme court is visiting unjustifiable harm upon contract law without advancing the DTPA's purpose. Contracts still play a fundamental role in law and society by protecting agreements that are the lifeblood of our economic system. The DTPA should not be a tool for scrapping this essential institution