If commercial transactions in the industry were governed solely by explicit, legally enforceable contracts under which the promisee could recover expectation damages in the event of breach, the market would be characterized by frequent inefficient breach of contract. The sources of this inefficiency are the uncertainty of recovery, the way courts calculate damages, the length of time it takes to obtain a judgment, and, in some instances, the fact that many diamantaires do not have ready access to capital markets. In most settings, expectation damages, as enforced through the courts, do not achieve their stated theoretical objective of placing the promisee in the same position that he would have been in if the breach had never occurred; they neither make the promisee whole ex post, nor give the promisor sufficient incentive to perform the promise ex ante.

Lisa Bernestein, Opting out of the Legal Sys…, loc. 148