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Commercial Law

Selected Works

Selected Works

Contracts

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Full-Text Articles in Law

Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne Sep 2019

Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne

Christopher Byrne

No abstract provided.

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They Can Do What!? Limitations On The Use Of Change-Of-Terms Clauses, Peter A. Alces, Michael M. Greenfield Sep 2019

They Can Do What!? Limitations On The Use Of Change-Of-Terms Clauses, Peter A. Alces, Michael M. Greenfield

Peter A. Alces

No abstract provided.

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Reinventing The Wheel, Marion W. Benfield Jr., Peter A. Alces Sep 2019

Reinventing The Wheel, Marion W. Benfield Jr., Peter A. Alces

Peter A. Alces

No abstract provided.

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Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne Sep 2019

Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne

Peter A. Alces

No abstract provided.

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Mistake In Contract Law, Melvin A. Eisenberg Aug 2019

Mistake In Contract Law, Melvin A. Eisenberg

Melvin A. Eisenberg

Develops the legal rules that should govern mistake in contract law on a functional basis. Types of mistake that are relevant in contract law on the basis of their character; Reasons of efficiency and morality that apply to cases in which a non-mistaken party knew or had reason to know that a payment was mistakenly made; Distinction between mistaken factual assumptions and evaluative mistakes.

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Apple Pay, Bitcoin, And Consumers: The Abcs Of Future Public Payments Law, Mark Edwin Burge Jul 2016

Apple Pay, Bitcoin, And Consumers: The Abcs Of Future Public Payments Law, Mark Edwin Burge

Mark Edwin Burge

As technology rolls out ongoing and competing streams of payments innovation, exemplified by Apple Pay (mobile payments) and Bitcoin (cryptocurrency), the law governing these payments appears hopelessly behind the curve. The patchwork of state, federal, and private legal rules seems more worthy of condemnation than emulation. This Article argues, however, that the legal and market developments of the last several decades in payment systems provide compelling evidence of the most realistic and socially beneficial future for payments law. The paradigm of a comprehensive public law regulatory scheme for payment systems - exemplified by Articles 3 and 4 of the Uniform …

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Insuring Floods: The Most Common And Devastating Natural Catastrophies In America, Christopher French Feb 2015

Insuring Floods: The Most Common And Devastating Natural Catastrophies In America, Christopher French

Christopher C. French

Flooding is the most common natural catastrophe Americans face, accounting for 90% of all damage caused by natural catastrophes. Hurricanes Katrina and Sandy, for example, collectively caused over $160 billion in damage, but only approximately 10% of the Hurricane Katrina victims and 50% of the Hurricane Sandy victims had insurance to cover their flood losses. Consequently, both their homes and lives were left in ruins in the wake of the storms. Nationwide, only approximately 7% of homeowners have insurance that covers flood losses even though the risk of flooding is only increasing as coastal areas continue to be developed and …

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The Harmonization Of Browsewrap Agreements Abroad And The Protection Of American Consumers, Tinsley A. Ashley Jan 2015

The Harmonization Of Browsewrap Agreements Abroad And The Protection Of American Consumers, Tinsley A. Ashley

Tinsley A Ashley

No abstract provided.

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Dirty Debts Sold Dirt Cheap, Dalie Jimenez Dec 2014

Dirty Debts Sold Dirt Cheap, Dalie Jimenez

Dalie Jimenez

More than 77 million Americans have a debt in collections. Many of these debts will be sold to debt buyers for pennies, or fractions of pennies, on the dollar. This Article details the perilous path that debts travel as they move through the collection ecosystem. Using a unique dataset of 84 consumer debt purchase and sale agreement, it examines the manner in which debts are sold, oftentimes as simple data on a spreadsheet, devoid of any documentary evidence. It finds that in many contracts, sellers disclaim all warranties about the underlying debts sold or the information transferred. Sellers also sometimes …

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Are "Legal" Marijuana Contracts "Illegal"?, Luke M. Scheuer Dec 2014

Are "Legal" Marijuana Contracts "Illegal"?, Luke M. Scheuer

Luke M Scheuer

America is currently in the midst of a “legal” marijuana business boom. In states which have legalized marijuana thousands of businesses have been created and are being openly operated despite the continued prohibition on their main product by the federal Controlled Substances Abuse Act. As a regular part of their business, these companies enter into contracts which violate the CSA, for example, every time they sell their main product. These businesses, and their stakeholders, rely upon the enforceability of these contracts in order to regulate their relationships. However, under the “illegality” or public policy defense to the enforcement of contracts …

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The Software Licensing Dilemma, Nancy S. Kim Aug 2014

The Software Licensing Dilemma, Nancy S. Kim

Nancy Kim

No abstract provided.

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A Case Study In Collaborative Technology And The Intentionally Relational Contract: Building Information Modeling And Construction Industry Contracts, Carl J. Circo Dec 2013

A Case Study In Collaborative Technology And The Intentionally Relational Contract: Building Information Modeling And Construction Industry Contracts, Carl J. Circo

Carl J. Circo

This article argues that the digital world is beginning to play a key role in moving commercial actors toward intentionally relational contracting practices by fostering and rewarding interdependence, adaptability, and reciprocity among otherwise autonomous, self-interested actors in the marketplace. Using a case study involving the most important technology affecting contractual relations in the construction industry, this article explores how collaborative technologies may be expanding opportunities for relational contract in commercial transactions. The study shows how building information modeling is reshaping contractual behavior in the industry by facilitating and encouraging a previously unimagined degree of collaboration among design professionals, builders, specialty …

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Entender Los Males Económicos Modernos A La Luz De La Doctrina Social Católica, Brian M. Mccall Dec 2013

Entender Los Males Económicos Modernos A La Luz De La Doctrina Social Católica, Brian M. Mccall

Brian M McCall

In a general sense, St. Thomas Aquinas predicted the paralysis and chaos of the financial and economic systems in America and Europe which occurred in 2008, when he predicted that in a society where unjust exchanges dominate, eventually all exchanges will cease. St. Thomas also points out that although human law cannot prohibit all injustice, society cannot escape the consequences of transgressing the divine law which leaves “nothing unpunished.” Thus, at least part of the explanation for that crisis whose effects remain with us today lies in continuous violations of natural justice by our economic system. Neither one product nor …

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Gambling On Our Financial Future: How The Federal Government Fiddles While State Common Law Is A Safer Bet To Prevent Another Financial Collapse, Brian M. Mccall Dec 2013

Gambling On Our Financial Future: How The Federal Government Fiddles While State Common Law Is A Safer Bet To Prevent Another Financial Collapse, Brian M. Mccall

Brian M McCall

Many politicians and commentators agree that credit default swaps (CDS) played a significant role in the financial crisis of 2008. Yet, few who observe this role are aware that CDS were set loose on the economy by the federal pre-emption of thousands of years of public policy. Since the time of Aristotle law, philosophy and public policy have been hostile to gambling. Viewed as a socially unproductive zero sum wealth transfer, the law has generally refused to permit parties to use the courts to enforce wagers. Courts and legislatures worked in harmony to control and in some cases punish financial …

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Entender Los Males Economómicos Modernos A La Luz De La Doctrina Social Cátolica (Understanding Modern Economic Woes In Light Of Catholic Social Doctrine), Brian M. Mccall Dec 2013

Entender Los Males Economómicos Modernos A La Luz De La Doctrina Social Cátolica (Understanding Modern Economic Woes In Light Of Catholic Social Doctrine), Brian M. Mccall

Brian M McCall

En sentido general, Santo Tomás Aquino predijo la parálisis y el caos del sistema financiero económico en Estados Unidos y Europa que ocurrió en 2008, cuando predijo que en una sociedad donde los intercambios injustos dominan, eventualmente todos los intercambios podrán cesar. Santo Tomás también señala que aunque la ley humana no pueda prohibir todas las injusticias, la sociedad no puede escapar de las consecuencias de trasgredir la ley divina que no deja nada en la impunidad. Así, al menos una parte de la explicación para esta crisis cuyos efectos permanecen con nosotros en la actualidad se encuentra en las …

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Are All Contracts Alike?, Margaret F. Brinig Oct 2013

Are All Contracts Alike?, Margaret F. Brinig

Margaret F Brinig

No abstract provided.

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An All Of The Above Theory Of Legal Development, Larry A. Dimatteo Jun 2013

An All Of The Above Theory Of Legal Development, Larry A. Dimatteo

Larry A DiMatteo

This paper reviews different theories of legal development in order to highlight their similarities and differences. In the end, as in contract theories, no monist view of legal development possesses the explanatory power needed to understand how law has come to be and where it may take us in the future. What we do have is a foundation built on at least two millennia of legal history. The intellectual starting point for this project is Nathan Isaacs’ unfinished work on a cycle theory of legal development. His view of legal development takes issue with Henry Sumner Maine’s thesis that development …

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Segmented Settlements Are Not The Answer: A Response To Professor Squire’S Article, How Collective Settlements Camouflage The Costs Of Shareholder Lawsuits, Christopher C. French Dec 2012

Segmented Settlements Are Not The Answer: A Response To Professor Squire’S Article, How Collective Settlements Camouflage The Costs Of Shareholder Lawsuits, Christopher C. French

Christopher C. French

In his recent article, Professor Richard Squire offers a provocative theory in which he claims the underlying claimants in shareholder litigation against corporate policyholders are overcompensated due to what he describes as “cramdown” settlements, under which insurers are forced to settle due to the “duty to contribute” that arises under multi-layered directors and officers (“D&O”) insurance programs. He also offers a novel idea regarding how this problem could be fixed by what he refers to as “segmented” settlements in which each insurer and the policyholder would be allowed to settle separately and consider only its own interests in doing so. …

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Lo Que Usted Debe Saber Al Invertir En Una Franquicia En México, Rodolfo C. Rivas Rea Esq., Marco A. Vargas Iñiguez Esq. Aug 2012

Lo Que Usted Debe Saber Al Invertir En Una Franquicia En México, Rodolfo C. Rivas Rea Esq., Marco A. Vargas Iñiguez Esq.

Rodolfo C. Rivas

The authors provide a brief account of the increasing importance of franchises in the current economic environment. Furthermore, in this walkthrough the authors discuss the existing legal regime for franchises in Mexico and provide an analysis of the negotiating positions involved in successfully developing a franchise.//////////////////////////////////////////////////////////////////////Los autores proporcionan un breve estudio sobre la creciente importancia de las franquicias en el entorno económico actual. Además, los autores analizan el régimen jurídico vigente para las franquicias en México y ofrecen un análisis sobre las negociaciones necesarias para el desarrollo exitoso de una franquicia.

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The Story Of Ymps ("Yield Maintenance Premiums") In Bankruptcy, Ingrid Michelsen Hillinger, Michael G. Hillinger Jan 2012

The Story Of Ymps ("Yield Maintenance Premiums") In Bankruptcy, Ingrid Michelsen Hillinger, Michael G. Hillinger

Ingrid Michelsen Hillinger

No abstract provided.

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Debunking The Myth That Insurance Coverage Is Not Available Or Allowed For Intentional Torts Or Damages, Christopher French Dec 2011

Debunking The Myth That Insurance Coverage Is Not Available Or Allowed For Intentional Torts Or Damages, Christopher French

Christopher C. French

Over the years, a myth has developed that insurance coverage is not available or allowed for intentional injuries or damage. This myth has two primary bases: one, the “fortuity” doctrine, which provides that insurance should only cover losses that happen by chance; and two, public policy, which allegedly disfavors allowing insurance for intentional injuries or damage. This article dispels that myth. Many types of liability insurance policies expressly cover intentional torts including trademark infringement, copyright infringement, invasion of privacy, defamation, disparagement, and improper employment practices such as discrimination. In addition, punitive damages, which typically are awarded for intentional misconduct, are …

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Focusing On The Realities Of The Contracting Process — An Essential Step To Achieve Justice In Contract Enforcement, Russell A. Hakes Dec 2010

Focusing On The Realities Of The Contracting Process — An Essential Step To Achieve Justice In Contract Enforcement, Russell A. Hakes

Russell A. Hakes

No abstract provided.

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Construction Defects: Are They “Occurrences”?, Chris French Dec 2010

Construction Defects: Are They “Occurrences”?, Chris French

Christopher C. French

An issue in the area of insurance law that has been litigated frequently in recent years is whether construction defects are “occurrences” under Commercial General Liability (“CGL”) insurance policies. The courts have been divided in deciding the issue and in their approaches to analyzing the issue. This article addresses how the issue should be analyzed and concludes that construction defects are “occurrences”.

The relevant rules of insurance policy interpretation dictate that construction defects are “occurrences”. Policy language should be interpreted in such a way as to fulfill the reasonable expectations of the policyholder when the policy is construed as a …

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Candados Negociales En El Modelo De Franquicia, Rodolfo C. Rivas Rea Esq., Marco A. Vargas Iñiguez Esq. Dec 2010

Candados Negociales En El Modelo De Franquicia, Rodolfo C. Rivas Rea Esq., Marco A. Vargas Iñiguez Esq.

Rodolfo C. Rivas

The authors discuss different legal mechanisms to franchise your business successfully while minimizing legal risks.//////////////////////////////////////Los autores analizan los diferentes mecanismos legales para desarrollar una franquicia con éxito y reducir al mínimo los riesgos legales.

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Relational Governance And Contract Damages: Evidence From Franchising, Adam B. Badawi Dec 2009

Relational Governance And Contract Damages: Evidence From Franchising, Adam B. Badawi

Adam B. Badawi

The literature on contract theory expects parties to use incentive mechanisms that minimize the costs of verifying breach in court if these mechanisms can effectively deter breach. This paper tests this hypothesis about relational governance in the context of franchising, an organizational form that provides parties with a suite of governance choices that span the range from those that require little or no verification to those that entail expensive and uncertain litigation. While relational governance options may be inexpensive, they may not be as effective as using incentives that require enforcement of written contracts, such as the threat of contract …

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Survey Of The Law Of Cyberspace: Introduction, Juliet Moringiello Oct 2009

Survey Of The Law Of Cyberspace: Introduction, Juliet Moringiello

Juliet M Moringiello

No abstract provided.

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The Attributes Of Transactions And The Limits Of The New Formalism, Adam B. Badawi Dec 2008

The Attributes Of Transactions And The Limits Of The New Formalism, Adam B. Badawi

Adam B. Badawi

A recent movement in contracts scholarship—the so-called New Formalism—seeks to justify limitations on the introduction of extrinsic evidence to interpret contracts on the instrumental grounds of efficiency and empirical observation. Less attention has been directed at the development of a similar instrumental argument for the more contextual types of interpretation observed in the Uniform Commercial Code and the Restatement (Second) of Contracts. This Article engages this question by arguing that the relative ability of transactors to draft complete contracts is likely to be an important determinant of their preferred interpretive regime. Where low contracting costs allow commercial parties to draft …

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Cyberspace Law Survey: Introduction, Juliet Moringiello, Michael Fleming Dec 2007

Cyberspace Law Survey: Introduction, Juliet Moringiello, Michael Fleming

Juliet M Moringiello

No abstract provided.

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Unconscionability As A Contract Policing Device For The Elder Client: How Useful Is It?, Robyn L. Meadows Dec 2004

Unconscionability As A Contract Policing Device For The Elder Client: How Useful Is It?, Robyn L. Meadows

Robyn L Meadows

No abstract provided.

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‘Paper World’ Analogies To Web Site Terms And Conditions: Travel Tickets And Other Similar Forms, Juliet M. Moringiello Jun 2003

‘Paper World’ Analogies To Web Site Terms And Conditions: Travel Tickets And Other Similar Forms, Juliet M. Moringiello

Juliet M. Moringiello

No abstract provided.

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