Law Commons^™

Teaching Slavery In Commercial Law, Carliss N. Chatman

Scholarly Articles

Public status shapes private ordering. Personhood status, conferred or acknowledged by the state, determines whether one is a party to or the object of a contract. For much of our nation’s history, the law deemed all persons of African descent to have a limited status, if given personhood at all. The property and partial personhood status of African-Americans, combined with standards developed to facilitate the growth of the international commodities market for products including cotton, contributed to the current beliefs of business investors and even how communities of color are still governed and supported. The impact of that shift in …

The Private Law Of Stablecoins, Kara J. Bruce, Christopher K. Odinet, Andrea Tosato

Faculty Scholarship

Stablecoins are one of the cornerstones of the crypto world. They’ve attracted significant attention over the past few years, ranging from Wall Street to kitchen table investors, and even the White House. As a less volatile alternative to crypto-assets like bitcoin, stablecoins have the potential to change the way we make payments, unlock the groundwork needed for more blockchain-based applications, and even reorient the economy toward private money. But how stable are these stablecoins, really? Can they be relied upon in the way their many proponents claim? And how much of the popular beliefs about stablecoins match their realities? That’s …

The Property Law Of Tokens, Juliet M. Moringiello, Christopher K. Odinet

Faculty Scholarship

Non-fungible tokens—or NFTs, as they are better known—have taken the world by storm. The idea behind an NFT is that by owning a certain thing (specifically, a digital token that is tracked on a blockchain), one can hold property rights in something else (either a real or intangible asset). In the early part of 2021, NFTs for items ranging from a gif of a pop-tart cat with a rainbow tail, to Twitter CEO Jack Dorsey’s first tweet, to a New York Times column (about NFTs!) have sold for millions of dollars over the internet. Promoters assert that NFTs are the …

Commercial Law Intersections, Giuliano Castellano, Andrea Tosato

All Faculty Scholarship

Commercial law is not a single, monolithic entity. It has grown into a dense thicket of subject-specific branches that govern a broad range of transactions and corporate actions. When one of these events falls concurrently within the purview of two or more of these commercial law branches - such as corporate law, intellectual property law, secured transactions law, conduct and prudential regulation - an overlap materializes. We refer to this legal phenomenon as a commercial law intersection (CLI). Some notable examples of transactions that feature CLIs include bank loans secured by shares, supply chain financing arrangements, patent cross-licensing, and blockchain-based …

The Economics Of Leasing, Thomas W. Merrill

Faculty Scholarship

Leasing may be the most important legal institution that has received virtually no systematic scholarly attention. Real property leasing is familiar in the context of residential tenancies. But it is also widely used in commercial contexts, including office buildings and shopping centers. Personal property leasing, which was rarely encountered before World War II, has more recently exploded on a world-wide basis, with everything from autos to farm equipment to airplanes being leased. This article seeks to develop a composite picture of the defining features of leases and why leasing is such a widespread and highly successful economic institution. The reasons …

Bitcoin And The Uniform Commercial Code, Jeanne L. Schroeder

Articles

Much of the discussion of bitcoin in the popular press has concentrated on its status as a currency. Putting aside a vocal minority of radical libertarians and anarchists, however, many bitcoin enthusiasts are concentrating on how its underlying technology – the blockchain – can be put to use for wide variety of uses. For example, economists at the Fed and other central banks have suggested that they should encourage the evolution of bitcoin’s blockchain protocol which might allow financial transactions to clear much efficiently than under our current systems. As such, it also holds out the possibility of becoming that …

Contracting In The Age Of The Internet Of Things: Article 2 Of The Ucc And Beyond, Stacy-Ann Elvy

Articles & Chapters

This Article analyzes the global phenomenon of the Internet of Things (“IOT”) and its potential impact on consumer contracts for the sale of goods. Recent examples of IOT products include Amazon’s Dash Replenishment Service, which allows household devices to automatically reorder goods. By 2025, the IOT is estimated to have an economic impact of as much as $11.1 trillion. To date, there are approximately fifteen billion interconnected devices, and by 2020, there will be fifty billion such devices worldwide. IOT devices will revolutionize the way that consumers shop for consumable supplies and other goods. Consumers will no longer need to …

Contract Resurrected! Contract Formation: Common Law – Ucc – Cisg, Sarah Howard Jenkins

Faculty Scholarship

No abstract provided.

Delaware’S Implied Contractual Covenant Of Good Faith And “Sibling Rivalry” Among Equity Holders, Daniel S. Kleinberger

Faculty Scholarship

An obligation of good faith and fair dealing is implied in every common law contract and is codified in the Uniform Commercial Code (“U.C.C”). The terminology differs: Some jurisdictions refer to an “implied covenant;” others to an “implied contractual obligation;” still others to an “implied duty.” But whatever the label, the concept is understood by the vast majority of U.S. lawyers as a matter of commercial rather than entity law. And, to the vast majority of corporate lawyers, “good faith” does not mean contract law but rather conjures up an important aspect of a corporate director’s duty of loyalty.

Nonetheless, …

Sale Of Goods Contract Not To Be Performed Within A Year: Is The Uniform Commercial Code Statute Of Frauds Provision Exclusive?, Sidney Kwestel

Scholarly Works

No abstract provided.

The American Commercial Religion, Haider Ala Hamoudi

Articles

To all but possibly the most senior of commercial law specialists, it is difficult to imagine American commercial life without the nationwide adoption of the Uniform Commercial Code. We would surely regard as impossible the idea that the vast economic success of the latter half of the twentieth century could have been achieved without it. The Uniform Commercial Code is our godhead, our sacred foundational document, our Holy Book of modern commerce, which brought us a form of economic enlightenment from the pre-Code Days of Ignorance. Our attachment to the U.C.C. runs far deeper than a mere rational commercial preference. …

Warranties In The Box, James J. White

Articles

Thousands of times each day, a buyer opens a box that contains a new computer or other electronic device. There he finds written material including an express "Limited Warranty." Sometimes the box has come by FedEx directly from the manufacturer; other times the buyer has carried it home from a retail merchant. Despite the fact that it is standard practice for the manufacturer to include a limited written express warranty on the sale of such products,' and despite the fact that both the manufacturer and the buyer believe that warranty to be legally enforceable, the law on its enforceability is …

How To Create A Commercial Calamity, Robert A. Hillman

Cornell Law Faculty Publications

This Article briefly catalogs the kinds of commercial calamities and then focuses on one of them, namely laws that are so imprecise and ambiguous that judges do not know how to apply them, and lawyers cannot explain them. The Article illustrates the problem with Uniform Commercial Code (UCC) section 2-209, dealing with contract modification and waiver. The paper does not focus on the ambiguities and obfuscations of section 2-209, but on the strategy of lawmaking that inevitably produces such a result. The drafters of section 2-209 ambitiously sought to reform the law, but then lost their nerve. In short, they …

Got Wheels?: Article 2a, Standardized Rental Car Terms, And Unilateral Private Ordering, Irma S. Russell

Faculty Works

This Article examines the modern system of unilateral private ordering facilitated by form contracts in the context of standard form contracts for renting a car. Modern law accepts the presumption of a free market and free bargain in the setting of form contracting despite the lack of bargaining power on the consumer side of the deal. The article assesses the importance of defaults and presumptions in contract law, and presents the results of an empirical review of standard agreement forms of ten leading rental car companies, noting examples of significant alterations to common law defaults. The article also explores the …

Contracting Out Of The Ucc, Sarah Howard Jenkins

Faculty Scholarship

No abstract provided.

Contracting Out Of Article 2: Minimizing The Obligation Of Performance & Liability For Breach, Sarah Howard Jenkins

Faculty Scholarship

No abstract provided.

Revisiting Austin V. Loral: A Study In Economic Duress, Contract Modification And Framing, Meredith R. Miller

Scholarly Works

Austin v. Loral, 29 N.Y.2d 124 (1971), is a favorite among Contracts casebooks because the New York Court of Appeals held that it was a "classic" example of economic duress. It involved Austin, a small gear part manufacturer, who had entered into a subcontract to provide gear parts to Loral, a publicly-traded defense industry supplier. Loral had a contract with the U.S. government to supply radar sets, to be used in the U.S. efforts in Vietnam. Midway through performance of the subcontract, Austin apparently refused to continue to deliver the gear parts unless Loral acceded to certain demands, which included …

Party Autonomy In Choice Of Commercial Law: The Failure Of Revised U.C.C. § 1-301 And A Proposal For Broader Reform, Jack M. Graves

Scholarly Works

No abstract provided.

Contracting Under Amended 2-207 (Freedom From Contract Symposium), James J. White

Articles

Amended Section 2-207 of the Uniform Commercial Code1 (the Code) states new contract rules. I call these "contract rules" to avoid the labels of contract formation and contract interpretation. These new rules cure many of the problems presented by current Section 2-2072 and remind courts that the purpose of Section 2-207 is to interpret a contract that has been made, not to see if a contract exists. One is tempted to label current Section 2-207 as a contract formation provision-and to some extent that would be right-but most of this Section's work has been in contract interpretation, not in contract …

Course Of Performance As Evidence Of Intent Or Waiver: A Meaningful Preference For The Latter And Implications For Newly Broadened Use Under Revised U.C.C. Section 1-303, Jack M. Graves

Scholarly Works

No abstract provided.

Default Rules In Sales And The Myth Of Contracting Out, James J. White

Articles

In this article, I trace the dispute in the courts and before the ALI and NCCUSL over the proper contract formation and interpretation default rules. In Part II, I consider the Gateway litigation. In Part III, I deal with UCITA and the revision to Article 2. In Part IV, I consider the merits of the competing default rules.

Express Warranty As Contractual - The Need For A Clear Approach, Sidney Kwestel

Scholarly Works

No abstract provided.

Good Faith And The Cooperative Antagonist (Symposium On Revised Article 1 And Proposed Revised Article 2 Of The Uniform Commercial Code), James J. White

Articles

One of Karl Llewellyn's most noted achievements in the Uniform Commercial Code was to impose the duty of good faith on every obligation under the Uniform Commercial Code.1 Some (I am one) have privately thought that imposition of this unmeasurable, undefinable duty was Llewellyn's cruelest trick, but no court, nor any academic writer, has ever been so bold or so gauche as to suggest that good faith should not attend the obligations of parties under the UCC. Notwithstanding this silent indorsement of the duty of good faith, the courts2 and commentators3 have had difficulty in determining what is and what …

Comparing The General Good Faith Provisions Of The Pecl And The Ucc: Appearance And Reality, Harry Flechtner

Articles

"Good faith" is a notoriously amorphous and variable concept. Thus it is the interpretation and application of the concept that provides the most important points of comparison for the good faith provisions of the Principles of European Contract Law ("PECL") and the Uniform Commercial Code ("UCC") . The UCC has been in force since the 1950's, and its good faith provisions have been applied in hundreds of cases. In contrast, the PECL is a new phenomenon and its good faith rules have not been applied to actual cases. The comment to PECL Article 1:201, however, includes five concrete illustrations of …

20th Annual Conference On Legal Issues For Financial Institutions, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Program and materials from the 20th Annual Legal Issues for Financial Institutions Conference held by UK/CLE in April of 2000.

Autistic Contracts (Symposium), James J. White

Articles

In this paper I address the question whether the law should affirm the offeror's inference and should bind the offeree to the terms proposed by the offeror even in circumstances where the offeree may not intend to accept those terms and where an objective observer might not draw the inference of agreement from the offeree's act. Modem practice and current proposals concerning contract formation in Revised Article 2 and in the Uniform Computer Information Transactions Act (nee Article 2B) press these issues on us more forcefully than old practices and different law did. 1 But contractual autism is not new; …

Freeing The Tortious Soul Of Express Warranty Law, James J. White

Articles

I suspect that most American lawyers and law students regard express warranty as neither more nor less than a term in a contract, a term that is subject to conventional contract rules on formation, interpretation, and remedy. Assume, for example, that a buyer sends a purchase order to a seller and the purchase order specifies the delivery of 300 tons of "prime Thomas cold rolled steel." The acknowledgment also describes the goods to be sold as "prime Thomas cold rolled steel." Every American lawyer would agree that there is a contract to deliver such steel and furthermore would conclude that …

Article 5 - Recent Developments, James J. White

Other Publications

I. Mitigation in Letter of Credit Transactions Assume a Buyer has procured a letter of credit to pay for contracted goods but no longer wants the goods. The Buyer and the Issuer would like to force the Beneficiary to mitigate. Assume that both the Issuer and Applicant repudiate their obligation or that the Applicant has failed and the Issuer repudiates its obligation to pay under the letter of credit. At the moment of repudiation the price for a gallon of the underlying oil that is the subject of the letter of credit is $.75 and that the letter of credit …

Form Contracts Under Revised Article 2 (Symposium: Consumer Protection And The Uniform Commercial Code), James J. White

Articles

The current draft of section 2-206 in Revised Article 2 of the Uniform Commercial Code ("UCC") entitled "Consumer Contract: Standard Form"1 presents a unique and threatening challenge to the drafters of consumer form contracts. In earlier drafts, one part of the section applied to both to commercial contracts and consumer contracts. It required that "one manifest assent" to any form contract, commercial or consumer, in order for it to be binding.2 Bowing to commercial opposition in the most recent version, the drafters have omitted all reference to commercial contracts. As the section stands, it applies only to consumer contracts.

The Intersection Of Articles 2 And 9, Steven L. Harris, James J. White

Other Publications

I. Standard Form Contracts II. Buyer in Ordinary Course; Prepaying Buyer III. Consignments IV. Seller's Right to Reclaim Delivered Goods