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Full-Text Articles in Law
The Responsible Thing To Do About "Responsible Party" Provisions In Nursing Home Agreements: A Proposal For Change On Three Fronts, Katherine C. Pearson
The Responsible Thing To Do About "Responsible Party" Provisions In Nursing Home Agreements: A Proposal For Change On Three Fronts, Katherine C. Pearson
University of Michigan Journal of Law Reform
Nursing homes routinely seek the signature of a family member on nursing home agreements, calling the signer a "responsible party" or sponsor for the resident. Federal Medicare and Medicaid law provides that participating facilities must "not require a third party guarantee of payment to the facility as a condition of admission ...to, or continued stay, in the facility. "Nonetheless, if federal benefits prove to be unavailable, courts are holding responsible parties contractually liable for thousands of dollars for the care of their elders. This Article proposes private and public responses to the increasing likelihood that nursing homes will seek collection …
'Agreeing To Disagree': Filling Gaps In Deliberately Incomplete Contracts, Omri Ben-Shahar
'Agreeing To Disagree': Filling Gaps In Deliberately Incomplete Contracts, Omri Ben-Shahar
Articles
Incomplete contracts have always been viewed as raising the following challenge for contract law: does the incompleteness-or, "indefiniteness," as it is usually called-rise to such a level that renders the agreement legally unenforceable? When the indefiniteness concerns important terms, it is presumed that the parties have not reached an agreement to which they intend to be bound. This "fundamental policy" is the upshot of the view that "contracts should be made by the parties, not by the courts."' When, in contrast, the indefiniteness concerns less important terms, courts supplement the agreement with gap fillers and enforce the supplemented contract.
Mutual Assent Versus Gradual Ascent: The Debate Over The Right To Retract, Omri Ben-Shahar
Mutual Assent Versus Gradual Ascent: The Debate Over The Right To Retract, Omri Ben-Shahar
Articles
I ended Contracts Without Consent: Exploring a New Basis for Contract Liability with a reminder that the analysis was "lacking in rigor and in nuance" and that "[i]t remains for future work to explore the extent to which the approach developed. . . has the horsepower to resolve pragmatically the problems that have proven difficult for current doctrine and to examine whether these solutions advance the various social objectives associated with contract formation." Such "future work" arrived sooner than I expected. I have now had the privilege to read the three commentaries that the University of Pennsylvania Law Review solicited, …
Contracts Without Consent: Exploring A New Basis For Contractual Liability, Omri Ben-Shahar
Contracts Without Consent: Exploring A New Basis For Contractual Liability, Omri Ben-Shahar
Articles
This Essay explores an alternative to one of the pillars of contract law, that obligations arise only when there is "mutual assent "--when the parties reach consensus over the terms of the transaction. It explores a principle of "no-retraction," under which each party is obligated to terms it manifested and can retract only with some liability. In contrast to the all-or-nothing nature of the mutual assent regime, where preliminary forms of consent are either full-blown contracts or create no obligation, under the no-retraction regime, obligations emerge gradually, as the positions of the negotiating parties draw closer. Further, the no-retraction liability …
Forward [To Freedom From Contract Symposium], Omri Ben-Shahar
Forward [To Freedom From Contract Symposium], Omri Ben-Shahar
Articles
This Symposium explores freedom from contract. When I was preparing to travel from my home in Ann Arbor to the University of Wisconsin where this Symposium was to be held, my 9-year-old son asked where I was headed. I explained that a bunch of people and I were going to meet and talk about freedom from contract, but the boy seemed unsure what this exchange was going to be about. I tried to translate: "It is about making promises that you don't really have to keep." This sounded surprising to him. He raised an inquisitive brow, and I knew he …