Law Commons^™

What’S Software Got To Do With It? The Ali Principles Of The Law Of Software Contracts, Juliet Moringiello, William Reynolds

Juliet M Moringiello

In May, 2009, the American Law Institute (“ALI”) approved its Principles of the Law of Software Contracts (“Principles”). The attempt to codify, or at least unify, the law of software contracts has a long and contentious history, the roots of which can be found in the attempt to add an Article 2B to the Uniform Commercial Code (“UCC”) in the mid-1990s. Article 2B became the Uniform Computer Information Transactions Act (“UCITA”) when the ALI withdrew from the project in 1999, and UCITA became the law in only two states, Virginia and Maryland. UCITA became a dirty word, with several states …

The Productive Tension Between Official And Unofficial Stories Of Fault In Contract Law, Martha M. Ertman

Martha M. Ertman

Officially Contract law ignores fault. However, an unofficial story complements the official one, and explains why fault occasionally slips into contract law through doctrines such as willful breach. This chapter of FAULT IN AMERICAN CONTRACT LAW (Omri Ben-Shahar & Ariel Porot, eds, Cambridge U. Press, forthcoming 2010) argues that the official and unofficial stories operate in productive tension to both facilitate ex ante planning and, when necessary, look backward at reasons for breach to reach a just result. The occasional presence of fault in contract law, in this view, represents merely one more instance of the common doctrinal pattern of …

Taming The Unruly Horse! Contractual Illegality And Public Policy: Fitzgerald V Fj Leonhardt Pty Ltd, Jay Forder

Jay Forder

Extract: FJ Leonhardt Pty Ltd (the "driller") sued for payment under a contract to drill for water. The contract had been performed without all the necessary permits. This was through no fault of the driller - he had complied with the requirements as implemented by the Water Authority at the time. While the contract was perfectly legal when formed, the question is whether it is to be rendered unenforceable because its performance unwittingly breached a statutory requirement of obtaining a prior permit. There is a line of authority which suggests that even where a contract is illegal as performed, it …

Electronic Contracting Cases 2009-2010, Juliet Moringiello, William Reynolds

Juliet M Moringiello

This article, our sixth annual survey of electronic contracting cases, discusses the significant electronic contracting cases decided between June 15, 2009 and June 15, 2010. Over the past six years, the law of electronic contracts has matured, and the cases we discuss in this article show this maturation. The survey covers contract formation by the use of shrinkwrap, clickwrap and browsewrap terms, and contract formation by the exchange of e-mail messages.

Contracting For State Intervention, W. Mark C. Weidemaier

W. Mark C. Weidemaier

Electronic Contracting Cases 2009-2010, Juliet M. Moringiello, William L. Reynolds

William L. Reynolds

This article, our sixth annual survey of electronic contracting cases, discusses the significant electronic contracting cases decided between June 15, 2009 and June 15, 2010. Over the past six years, the law of electronic contracts has matured, and the cases we discuss in this article show this maturation. The survey covers contract formation by the use of shrinkwrap, clickwrap and browsewrap terms, and contract formation by the exchange of e-mail messages.

Giving Unconscionability More Muscle: Attorney’S Fees As A Remedy For Contractual Overreaching, Stephen E. Friedman

Stephen E Friedman

This Article seeks to broaden the conversation about unconscionability. While most of the discussion has focused on the appropriate standard for determining unconscionability, this Article focuses on the appropriate remedy to be imposed when unconscionability is found. The current remedy for unconscionability is non-enforcement or limited enforcement of unconscionable contracts or contract terms. This remedy is inadequate and seriously undermines unconscionability’s effectiveness as a tool for policing against contractual overreaching. The Article proposes that courts be given discretion to award attorney’s fees to consumers who successfully establish the unconscionability of a standard form contract. Such a remedy would enable unconscionability …