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Articles 1 - 30 of 37
Full-Text Articles in Law
Would Reasonable People Endorse A ‘Content-Neutral’ Law Of Contract?, Aditi Bagchi
Would Reasonable People Endorse A ‘Content-Neutral’ Law Of Contract?, Aditi Bagchi
Faculty Scholarship
This essay raises two challenges to Peter Benson’s compelling new account of contract law. First, I argue that Benson’s use of the concept of reasonableness goes beyond the Rawlsian account to require that we impute to others a capacity to transcend their contingent circumstances in the context of contractual choice. In fact, our choices in contract are driven by external contingencies and it is only reasonable to take those constrains on other people’s choices into account. Second, I contest Benson’s related claim that contract law should be, and largely is, content-neutral. I argue to the contrary that the justice of …
More Contract Lore, Robert A. Hillman
More Contract Lore, Robert A. Hillman
Cornell Law Faculty Publications
Contract lore consists of “traditional beliefs” about contract law that judges, lawyers, and scholars applying and writing about contract law, employ so routinely and confidently that the principles demonstrate how we perceive contract law today. Previously, I presented three illustrations of contract lore: First, expectancy damages put the injured party in as good a position as if there were no breach. Second, the reasons for a breach, “whether willful, negligent, or unavoidable, are irrelevant to the rules of performance and remedies.” Third, contract formation and interpretation focus on the parties’ intentions.
None of these principles are factually or historically even …
Contractual Incapacity And The Americans With Disabilities Act, Sean M. Scott
Contractual Incapacity And The Americans With Disabilities Act, Sean M. Scott
Dickinson Law Review (2017-Present)
The doctrine of contractual incapacity allows people with mental disabilities to avoid their contractual liability. Its underlying premise is that the law has an obligation to protect people with such disabilities both from themselves and from unscrupulous people who would take advantage of them; mental incapacity provides this protection by rendering certain contracts unenforceable. The Disability Rights Movement (“DRM”), however, has challenged such protective legal doctrines, as they rest on outmoded concepts about people with mental disabilities.
This essay argues that the mental incapacity doctrine undermines the goals of the DRM and the legislative goals of the Americans with Disabilities …
Contract Consideration And Behavior, David A. Hoffman, Zev. J. Eigen
Contract Consideration And Behavior, David A. Hoffman, Zev. J. Eigen
All Faculty Scholarship
Contract recitals are ubiquitous. Yet, we have a thin understanding of how individuals behave with respect to these doctrinally important relics. Most jurists follow Lon Fuller in concluding that when read, contract recitals accomplish their purpose: to caution against inconsiderate contractual obligation. Notwithstanding the foundational role that this assumption has played in doctrinal and theoretical debates, it has not been tested. This Article offers what we believe to be the first experimental evidence of the effects of formal recitals of contract obligation — and, importantly too, disclaimers of contractual obligation — on individual behavior. In a series of online experiments, …
A Renewed Consideration Of Consideration: Mwb Business Exchange Centres Ltd V Rock Advertising Ltd [2016] Ewca Civ 553, Kenny Chng, Yihan Goh
A Renewed Consideration Of Consideration: Mwb Business Exchange Centres Ltd V Rock Advertising Ltd [2016] Ewca Civ 553, Kenny Chng, Yihan Goh
Research Collection Yong Pung How School Of Law
This note argues thatthe English Court of Appeal decision of MWBBusiness Exchange Centres Ltd v Rock Advertising Ltd is a significantmodification of the present understanding of consideration with respect toagreements to accept part-payments of a debt and to perform pre-existing duties,and that the preferred way forward for the development of the law should be judicialintervention by the Supreme Court to reconcile the logical inconsistenciesbetween Foakes v Beer and Williams v Roffey Bros & Nicholls(Contractors) Ltd.
Viken Securities Limited, Order Granting Defendants' Motion For Summary Judgment And Denying Plaintiffs' Motion For Partial Summary Judgement As To Counts I & Ii, Melvin K. Westmoreland
Viken Securities Limited, Order Granting Defendants' Motion For Summary Judgment And Denying Plaintiffs' Motion For Partial Summary Judgement As To Counts I & Ii, Melvin K. Westmoreland
Georgia Business Court Opinions
No abstract provided.
Resolving The Paradox Of The Consideration Doctrine: The Implications Of Inefficient Signaling And Of Anti-Commodification Norms
David Gamage
This paper addresses one of the central problems of contract law, a puzzle that has troubled generations of contracts scholars: Why do we only enforce promises backed by consideration? Or, how can we justify insisting on the bargain context, but not requiring that the bargains be adequate? The lack of a theoretical solution to this puzzle has plagued the application of the consideration doctrine in courts of law.
We resolve this paradox through two innovations. First, using a game theory model based on asymmetric information, we dispute the common wisdom that the law should honor parties’ intentions as articulated at …
Commodification And Contract Formation: Placing The Consideration Doctrine On Stronger Foundations
Commodification And Contract Formation: Placing The Consideration Doctrine On Stronger Foundations
David Gamage
Under the traditional consideration doctrine, a promise is only legally enforceable if it is made in exchange for something of value. This doctrine lies at the heart of contract law, yet it lacks a sound theoretical justification – a fact that has confounded generations of scholars and created a mess of case law. This paper argues that the failure of traditional justifications for the doctrine comes from two mistaken assumptions. First, previous scholars have assumed that anyone can back a promise with nominal consideration if they wish to do so. We show how social norms against commodification limit the availability …
Cross-Cultural Readings Of Intent: Form, Fiction, And Reasonable Expectations, Deborah Waire Post
Cross-Cultural Readings Of Intent: Form, Fiction, And Reasonable Expectations, Deborah Waire Post
Deborah W. Post
No abstract provided.
Cross-Cultural Readings Of Intent: Form, Fiction, And Reasonable Expectations, Deborah Waire Post
Cross-Cultural Readings Of Intent: Form, Fiction, And Reasonable Expectations, Deborah Waire Post
Scholarly Works
No abstract provided.
Freedom From Reliance: A Contract Approach To Express Warranty, Sidney Kwestel
Freedom From Reliance: A Contract Approach To Express Warranty, Sidney Kwestel
Sidney Kwestel
No abstract provided.
Economic Value, Equal Dignity And The Future Of Sweepstakes, Anthony N. Cabot, Glenn J. Light, Karl F. Rutledge
Economic Value, Equal Dignity And The Future Of Sweepstakes, Anthony N. Cabot, Glenn J. Light, Karl F. Rutledge
UNLV Gaming Law Journal
The three basic forms of prize gaming are gambling, sweepstakes, and contests. Most states have a common approach to determining the legality of prize gaming. In general, states analyze if an activity includes three factors associated with gambling: (1) opportunity to win a prize, (2) winning based on chance, and (3) consideration paid to take that chance. If you take away any one of the three elements of gambling—consideration, prize, or chance—you have an activity that is lawful in most states. A contest, for example, differs from gambling because the winner is determined by skill. Determination of whether a (pay-for-play) …
The Correspondence Of Contract And Promise, Jody S. Kraus
The Correspondence Of Contract And Promise, Jody S. Kraus
Faculty Scholarship
Correspondence accounts of the relationship between contract and promise hold either that contract law is justified to the extent it enforces a corresponding moral responsibility for a promise or unjustified to the extent it undermines promissory morality by refusing to enforce a corresponding moral responsibility for a promise. In this Article, I claim that contract scholars have mistakenly presumed that they can assess the correspondence between contract and promise without first providing a theory of self-imposed moral responsibility that explains and justifies the promise principle. I argue that any plausible theory of self-imposed moral responsibility is inconsistent with a strong …
Commodification And Contract Formation: Placing The Consideration Doctrine On Stronger Foundations, David S. Gamage
Commodification And Contract Formation: Placing The Consideration Doctrine On Stronger Foundations, David S. Gamage
ExpressO
Under the traditional consideration doctrine, a promise is only legally enforceable if it is made in exchange for something of value. This doctrine lies at the heart of contract law, yet it lacks a sound theoretical justification – a fact that has confounded generations of scholars and created a mess of case law.
This paper argues that the failure of traditional justifications for the doctrine comes from two mistaken assumptions. First, previous scholars have assumed that anyone can back a promise with nominal consideration if they wish to do so. We show how social norms against commodification limit the availability …
When Are Agreements Enforceable? Giving Consideration To Professor Barnett's Consent Theory Of Contract, James Maxeiner
When Are Agreements Enforceable? Giving Consideration To Professor Barnett's Consent Theory Of Contract, James Maxeiner
All Faculty Scholarship
This address considers five points: (1) the place of theory in American contract law; (2) the basic elements of Professor Barnett's theory are; (3) how these elements are similar to Continental law; (4) what it says about the American legal world that Barnett's theory has been discussed without reference to Continental systems; and, finally, (5) why I believe the American model is not a good one for a future European Civil Code but also hope that such a Code will become law.
Commodification And Contract Formation: Placing The Consideration Doctrine On Stronger Foundations, David Gamage, Allon Kedem
Commodification And Contract Formation: Placing The Consideration Doctrine On Stronger Foundations, David Gamage, Allon Kedem
Articles by Maurer Faculty
Under the traditional consideration doctrine, a promise is only legally enforceable if it is made in exchange for something of value. This doctrine lies at the heart of contract law, yet it lacks a sound theoretical justification a fact that has confounded generations of scholars and created a mess of case law.
This article argues that the failure of traditional justifications for the doctrine comes from two mistaken assumptions. First, previous scholars have assumed that anyone can back a promise with nominal consideration if they wish to do so. We show how social norms against commodification limit the availability of …
Resolving The Paradox Of The Consideration Doctrine: The Implications Of Inefficient Signaling And Of Anti-Commodification Norms, David S. Gamage
Resolving The Paradox Of The Consideration Doctrine: The Implications Of Inefficient Signaling And Of Anti-Commodification Norms, David S. Gamage
ExpressO
This paper addresses one of the central problems of contract law, a puzzle that has troubled generations of contracts scholars: Why do we only enforce promises backed by consideration? Or, how can we justify insisting on the bargain context, but not requiring that the bargains be adequate? The lack of a theoretical solution to this puzzle has plagued the application of the consideration doctrine in courts of law.
We resolve this paradox through two innovations. First, using a game theory model based on asymmetric information, we dispute the common wisdom that the law should honor parties’ intentions as articulated at …
You Asked For It, You Got It … Toy Yoda: Practical Jokes, Prizes, And Contract Law, Keith A. Rowley
You Asked For It, You Got It … Toy Yoda: Practical Jokes, Prizes, And Contract Law, Keith A. Rowley
Scholarly Works
For what seemed to be a simple contract dispute, Berry v. Gulf Coast Wings Inc. garnered an unusual amount of attention in both the legal and popular press. Former Hooters waitress Jodee Berry sued her ex-employer for breaching its promise to award a new Toyota to the winner of an April 2001 sales contest. Berry alleged that her manager, Jared Blair, told the waitresses at the Hooters where she worked at the time that whoever sold the most beer at each participating location during April 2001 would be entered in a drawing, the winner of which would receive a new …
Consideration And Estoppel: Problem And Panacea, Bruce Macdougall
Consideration And Estoppel: Problem And Panacea, Bruce Macdougall
Dalhousie Law Journal
In his book, The History of the Common Law of Contract, A.W.B. Simpson demonstrates that consideration originally seems to have meant the "matter of inducement" - the "why" of entering a promise.' He writes: "The essence of the doctrine of consideration, then, is the adoption by the common law of the idea that the legal effect of a promise should depend upon the factor or factors which motivated the promise. To decide whether a promise to do X is binding, you need to know why the promise was made."2 In modem terms, according to Simpson, a promise which lacks any …
Freedom From Reliance: A Contract Approach To Express Warranty, Sidney Kwestel
Freedom From Reliance: A Contract Approach To Express Warranty, Sidney Kwestel
Scholarly Works
No abstract provided.
Article Two Warranties In Commercial Transactions: An Update, Kathryn L. Moore, Debra L. Goetz, Douglas E. Perry, David S. Rabb
Article Two Warranties In Commercial Transactions: An Update, Kathryn L. Moore, Debra L. Goetz, Douglas E. Perry, David S. Rabb
Law Faculty Scholarly Articles
In 1978 the Cornell Law Review published a Special Project devoted to Article Two commercial warranties. Nine years have since elapsed, and we have decided to update and reassess this important area of the law. We have discovered that although judicial treatment of many aspects of Article Two warranty law has remained stable, in some instances the courts' treatment has progressed and in other instances it has become unclear. This Special Project is our attempt to assemble these changes, interpret the progress, and suggest new lines of analysis to clarify areas of conflict.
Contracts--Consideration--Inadequacy Of Consideration As A Factor In Determining Unconscionability Under Section 2-302 Of The Uniform Commercial Code, Michigan Law Review
Contracts--Consideration--Inadequacy Of Consideration As A Factor In Determining Unconscionability Under Section 2-302 Of The Uniform Commercial Code, Michigan Law Review
Michigan Law Review
Section 2-302 of the Uniform Commercial Code (Code) provides that a court may refuse to enforce all or part of a contract if it finds that the contract, or any part of it, was unconscionable when made. In American Home Improvement, Inc. v. MacIver the Supreme Court of New Hampshire apparently held that a price substantially in excess of the value of the goods and services sold was sufficient in itself to constitute unconscionability under this provision of the Code. The high price was at least in part attributable to high time-credit charges, and, as noted by the court, the …
Contracts For Religious Education Of Children, Jack F. Smith
Contracts For Religious Education Of Children, Jack F. Smith
Cleveland State Law Review
The courts of the United States almost uniformly hold that the parent having custody of a child or children can select the religious faith to be taught to the child or children, even though they may have previously promised to rear the child or children in a particular faith.
Forbearance To Sue On An Invalid Claim As Consideration For A Contract - Fiege V. Boehm, J. M. Roulhac
Forbearance To Sue On An Invalid Claim As Consideration For A Contract - Fiege V. Boehm, J. M. Roulhac
Maryland Law Review
No abstract provided.
Accommodation Paper Transferred After Maturity--The Defense Of Lack Of Consideration, Carleton M. Davis
Accommodation Paper Transferred After Maturity--The Defense Of Lack Of Consideration, Carleton M. Davis
Kentucky Law Journal
No abstract provided.
Consideration--Performance Of Existing Legal Obligation As Consideration For A New Contract, William R. Knuckles
Consideration--Performance Of Existing Legal Obligation As Consideration For A New Contract, William R. Knuckles
Kentucky Law Journal
No abstract provided.
The Seal As Consideration On A Negotiable Instrument - Citizen's Nat. Bank Of Pocomoke City V. Custis
Maryland Law Review
No abstract provided.
Consideration In The Anglo-American Law Of Contracts, Hugh Evander Willis
Consideration In The Anglo-American Law Of Contracts, Hugh Evander Willis
Indiana Law Journal
No abstract provided.
Consideration In The Anglo-American Law Of Contracts, Hugh Evander Willis
Consideration In The Anglo-American Law Of Contracts, Hugh Evander Willis
Indiana Law Journal
This article is revised and reprinted from the Pennsylvania Law Review with the permission of the editors of that periodical.