Law Commons^™

Promise And Private Law, Nathan B. Oman

Nathan B. Oman

This essay was part of a symposium on the thirtieth anniversary of the publication of Charles Fried's Contract as Promise and revisits Fried's theory in light of two developments in the private-law scholarship: the rise of corrective justice and civil-recourse theories. The structural features that motivate these theories-the bilateralism of damages and the private standing of plaintiffs-are both elements of the law of contracts that Contract as Promise sets out to explain. I begin with the issue of bilateralism. Remedies--in particular the defense of expectation damages--occupy much of Fried's attention in Contract as Promise, and he insists that this particular …

Bridging The Gap Between Intent And Status: A New Framework For Modern Parentage, Yehezkel Margalit

Hezi Margalit

The last few decades have witnessed dramatic changes in the conceptualization and methodologies of determining legal parentage in the U.S. and other countries in the western world. Through various sociological shifts, growing social openness and bio-medical innovations, the traditional definitions of family and parenthood have been dramatically transformed. This transformation has led to an acute and urgent need for legal and social frameworks to regulate the process of determining legal parentage. Moreover, instead of progressing in a piecemeal, ad-hoc manner, the framework for determining legal parentage should be comprehensive. Only a comprehensive solution will address the differing needs of today’s …

From Baby M To Baby M(Anji): Regulating International Surrogacy Agreements, Yehezkel Margalit

Hezi Margalit

In 1985, when Kim Cotton became Britain’s first commercial surrogate mother, Europe was exposed to the issue of surrogacy for the first time on a large scale. Three years later, in 1988, the famous case of Baby M drew the attention of the American public to surrogacy as well. These two cases implicated fundamental ethical and legal issues regarding domestic surrogacy and triggered a fierce debate about motherhood, child-bearing, and the relationship between procreation, science and commerce. These two cases exemplified the debate regarding domestic surrogacy - a debate that has now been raging for decades. Contrary to the well-known …

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

Right To Cure Under The Unidroit Principles Article 7.1.4: A Historical Analysis, Gakuro Himeno

Gakuro HIMENO

Riht to cure under Unidroit 7.1.4 has three sources: a) Nachtrag, b) mise en demeure and Nachfrist and c) right to cure under Uniform Commercial Code 2-508. When the UCC Committee, Section of Business law, the ABA reviewed what will become the Unidroit Principles, they found a counterpart to their own right to cure in it: Nachfrist. Then drafting a new provision upon cure was commissioned to Richard Hyland, a US professor. While this provision, rare case where Unidroit and PECL disagrees (8. 104), has long been under criticism especially by the European drafters, met with a DCFR provision that …

Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra

Thiago Luís Santos Sombra

With the changes in the paradigm of voluntarism developed under the protection of liberalism, the bases for legal acts have reached an objective dimension, resulting in the birth of a number of mechanisms of control of private autonomy. Among these mechanisms, we can point out the relevance of those reinforced by the Roman Law, whose high ethical value underlines one of its biggest virtues in the control of the exercise of subjective rights. The prohibition of inconsistent behavior, conceived in the brocard venire contra factum proprium, constitutes one of the concepts from the Roman Law renown for the protection …

Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra

Thiago Luís Santos Sombra

With the changes in the paradigm of voluntarism developed under the protection of liberalism, the bases for legal acts have reached an objective dimension, resulting in the birth of a number of mechanisms of control of private autonomy. Among these mechanisms, we can point out the relevance of those reinforced by the Roman Law, whose high ethical value underlines one of its biggest virtues in the control of the exercise of subjective rights. The prohibition of inconsistent behavior, conceived in the brocard venire contra factum proprium, constitutes one of the concepts from the Roman Law renown for the protection …

An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez

Miguel Martínez

The purpose of this paper is to analyze the legal framework governing banking foundations as they have been regulated by Spanish Act 26/2013, of December 27th, on savings banks and banking foundations. Title 2 of this regulation addresses a construct that is groundbreaking for the Spanish legal system, still of paramount importance for the entire financial system insofar as these foundations become the leading players behind certain banking institutions given the high interest that foundations hold in the share capital of such institutions.

Stiffing The Arbitrators: The Problem Of Nonpayment In Commercial Arbitration, Brian Farkas, Neal M. Eiseman

Brian Farkas

Commercial arbitration is a creature of contract; the parties are there because they choose to be, either including an arbitration clause in their written agreement or, after a dispute developed, electing to avoid litigation all together. Arbitration also comes with an up-front cost non-existent in litigation: the arbitrators. Taxpayers pay for their state and federal judges, but the parties themselves pay for their arbitrators. But what happens if one party refuses (or is otherwise unable) to pay the arbitrator? If the arbitrator then refuses to proceed, as is likely, should the dispute revert to court, in derogation of the prior …

Artificial Insemination From Donor (Aid) – From Status To Contract And Back Again?, Yehezkel Margalit

Hezi Margalit

The last few decades have witnessed dramatic changes in the institutions of family and parenthood and an abandonment of the historical emphasis on their bionormative structures. These changes are the result of societal shifts with respect to public openness and technological innovations that segregate marital relations from sexuality and fertility. The resultant parenthood structures, which depart from traditional spousal and parental models, intensify the ability and need to determine legal parenthood in numerous unprecedented contexts. Sir Henry Maine famously stated that mankind is pacing from status toward contract. This theme has had particular resonance during the past half century in …

California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy Contracts, Jennifer Jackson

Jennifer Jackson

In an emotionally charged decision regarding surrogacy contracts, it is important to recognize the ramifications, costs, and policy. There are advantages to both “gestational carrier surrogacy” contracts and “traditional surrogacy” contracts. However, this paper focuses on the differences between these contracts using case law. Specifically, this paper will focus on the implications of California case law regarding surrogacy contracts. Cases such as Johnson v. Calvert and In Re Marriage of Moschetta provide a clear distinction between these contracts. This distinction will show that while gestational carrier surrogacy contracts are more expensive, public policy and court opinions will provide certainty and …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy Contracts, Jennifer Jackson

Jennifer Jackson

In an emotionally charged decision regarding surrogacy contracts, it is important to recognize the ramifications, costs, and policy. There are advantages to both “gestational carrier surrogacy” contracts and “traditional surrogacy” contracts. However, this paper focuses on the differences between these contracts using case law. Specifically, this paper will focus on the implications of California case law regarding surrogacy contracts. Cases such as Johnson v. Calvert and In Re Marriage of Moschetta provide a clear distinction between these contracts. This distinction will show that while gestational carrier surrogacy contracts are more expensive, public policy and court opinions will provide certainty and …

Contract Clauses As Public Goods: A New Way Of Understanding Inefficient Clauses, Enrico Baffi

enrico baffi

he aim of this work is to show how it is possible to identify market failures other than those traditionally identified by lawyers and law and economics scholars to justify the mandatory provisions of contracts between professionals and consumers and the equally mandatory provisions governing the abuse of economic dependency. This is a new approach that can be extended to other provisions and appears to rest on fairly solid microeconomic foundations. There is no doubt, however, that many criticisms can be leveled against it. Very briefly, I shall argue that the production of clauses characterized by being rather vague, indeterminate …

Towards Determining Legal Parentage By Agreement In Israel, Yehezkel Margalit

Hezi Margalit

In Israel as in other parts of the world, families, parenthood, and relations between parents and children have changed dramatically over the past few decades. So, too, developments in modern medicine have enhanced the ability to separate sexuality from fertility and parenthood. Many researchers feel that the legal system has not kept pace with these changes, and that traditional models of familial relationships no longer provide adequate tools for dealing with them. In order to bridge the gap between a desired social status and current law, a growing number of parents seek to regulate the status, rights, and obligations of …

Determining Legal Parenthood By Agreement As A Possible Solution To The Challenges Of The New Era, Yehezkel Margalit

Hezi Margalit

Over the past decades, we witnessed changes in the matrimonial and parenting institutions. Medical innovations have further created ethical-legal dilemmas. It is, therefore, essential to create a theory and framework that will determine ways to deal with the resulting dilemma in a fully developed manner. This paper surveys the current, conflicting shifts in family structure and the definition of legal parenthood. In it, I deal with the importance and various aspects of defining legal parenthood. I will also focus on the singularity of this dilemma as it is increasingly apparent in the various fertility treatments. I present the sociological-legal roots …

Standard Contract Clauses As Public Goods: A New Approach, Enrico Baffi

enrico baffi

The aim of this work is to show how it is possible to identify market failures other than those traditionally identified by lawyers and law and economics scholars to justify the mandatory provisions of contracts between professionals and consumers and the equally mandatory provisions governing the abuse of economic dependency. This is a new approach that can be extended to other provisions and appears to rest on fairly solid microeconomic foundations. There is no doubt, however, that many criticisms can be leveled against it. Very briefly, I shall argue that the production of clauses characterized by being rather vague, indeterminate …

Standard Contract Clauses As Public Goods: A New Way To Approach The Problem, Enrico Baffi

enrico baffi

The aim of this work is to show how it is possible to identify market failures other than those traditionally identified by lawyers and law and economics scholars to justify the mandatory provisions of contracts between professionals and consumers and the equally mandatory provisions governing the abuse of economic dependency. This is a new approach that can be extended to other provisions and appears to rest on fairly solid microeconomic foundations. There is no doubt, however, that many criticisms can be leveled against it. Very briefly, I shall argue that the production of clauses characterized by being rather vague, indeterminate …

Los Viajes En El Halcón Milenario Y El Rescate De La Princesa Leia Organa: Los Verdaderos Requisitos De La Imposibilidad Sobrevenida Por Causa No Imputable, Javier André Murillo Chávez

Javier André Murillo Chávez

No abstract provided.

La Venta Del Androide Defectuoso, La Garantía De Cumplimiento Conforme Y La Salvación De La Galaxia, Leysser L. Leon

Leysser L. León

Contribución destinada a la edición especial y limitada, en homenaje a la trilogía de Star Wars, del boletín de la Asociación Civil "Foro Académico", integrada por alumnos de la Facultad de Derecho de la Pontificia Universidad Católica del Perú.

Relational Contract Theory And Management Contracts: A Paradigm For The Application Of The Theory Of The Norms, Michael Diathesopoulos

Michael Diathesopoulos

This paper examines management contracts as a paradigm for the application of relational contracts theory and especially of the theory of contractual and relational norms. This theory, deriving from Macauley's implications, but structured and analysed by I.R. MacNeil gives us a framework for the explanation and understanding of contractual obligations and business relations' rules and practice. After presenting the key literature about the norms theory and especially defining the content of MacNeil's norms, we define management contracts as relations, characterised by a high relational element and we explain why, investigating all their features, which make them a suitable object for …

Failed Synallagmatic Contracts : Appraisal Of The Maxim "The Party Who Has Control And Can Insure Against The Loss Should Shoulder The Risk", Aimite Jorge

Aimite Jorge

The current position in South African law on enrichment situations arising from "failed agreements" is that "if you have received a performance in terms of a contract which subsequently fails for whatever reason, you give it back if you still have it; if you cannot give it back, you are absolved, unless you were culpable in relation to the loss". Daniel Visser, however, challenges this approach and proposes a new one in his recently published book, Unjustified Enrichment (2008). This article evaluates both this position and the newly suggested approach and it argues that in cases of failed synallagmatic contracts …

Bailment Or Lease: A Legal And Economic Analysis, Wei Zhang

Wei Zhang

When customers temporarily deposit their personal properties with a business which collects a fee, either directly or by incorporating the charge into the price of its goods or services (such as a locker at the supermarket, a parking garage, or a bank safe deposit box), it has long been disputed whether a bailment or a lease contract arises between the two parties. In this paper, I tried to approach this problem from a law and economics perspective. Efficiency-oriented judges should establish rules motivating parties to take optimal precautions to minimize the social costs associated with the loss of the property. …

'Freedom Of Contract' In Halachic Family Law? – A Comparison Of The Babylonian Talmud And The Palestinian Talmud, Yehezkel Margalit

Hezi Margalit

Recently we are witness to a growing interest in nuptial agreements, both in Jewish and civil law. In civil law it is customary to trace the “meta-story” of the development of civil family law from sacrament to status and from status to contract. Indeed, during the last fifty years we have seen how nuptial agreements developed to regulate different aspects of marriage in civil law, both in Israel and in the rest of the world. During the last twenty-five years an interest has also emerged in halakhic perspectives on “freedom of contract,” which is available for couples who wish to …

The Assault On Classical Legal Thought In Colombia (1886-1920), Jorge Gonzalez-Jacome

Jorge Gonzalez-Jacome

The topic of this paper is the tensions among classical legal thought (CLT) and other modes of legal thought in Colombia between 1886 and 1920. My main claim is that, during this period, CLT was attacked by a version of traditionalism and by a social-based legal thought. The former was evident in the constitutional discussions around the 1886 Colombian Constitution, while the latter became apparent in the interpretation of the Civil Code in areas such as property, contracts and torts. My goal is to tell a story that gives a sense of the fall of CLT as a process crossed …

La Buena Fe En La Negociación De Los Contratos: Apuntes Comparatísticos Sobre El Artículo 1362 Del Código Civil Peruano Y Su Presunto Papel Como Fundamento De La Responsabilidad Precontractual (2004), Leysser L. Leon

Leysser L. León

En este artículo, se efectúa un análisis histórico y comparativo de la responsabilidad civil por daños ocasionados durante los tratos previos al contrato.

A propósito, se demuestra, con los mismos instrumentos metodológicos, por qué las cláusulas normativas generales (Generalklauseln) son inapropiadas en ordenamientos jurídicos como el peruano, y por qué son aplicables a esta hipótesis de ilícito civil las reglas de la responsabilidad aquiliana o extracontractual (artículo 1969º del Código Civil peruano).

Remedies For Breach Of An Obligation: A Look At The Remedies' Section Of The New Israeli Civil Code, Dr. Yehuda Adar, Prof. Gabriela Shalev

Yehuda Adar Dr.

-This article is in Hebrew-

The remedies section in the new Israeli draft civil code is an endeavor to create a unified law of remedies, applicable to all branches of civil and commercial law, including torts and breach of contract. This article explores the main innovations included in the remedies section. It opens with a short overview of the status of the law of remedies in modern times, and the debate over the justification for unifying it. Then, in the remainder of the article, the authors examine the various changes, in terms of both structure and substance, reflected in the …