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Full-Text Articles in Law
A Complainant-Oriented Approach To Unconscionability And Contract Law, Nicholas Cornell
A Complainant-Oriented Approach To Unconscionability And Contract Law, Nicholas Cornell
Articles
This Article draws attention to a conceptual point that has been overlooked in recent discussions about the theoretical foundations of contract law. I argue that, rather than enforcing the obligations of promises, contract law concerns complaints against promissory wrongs. This conceptual distinction is easy to miss. If one assumes that complaints arise whenever an obligation has been violated, then the distinction does not seem meaningful. I show, however, that an obligation can be breached without giving rise to a valid complaint. This Article illustrates the importance of this conceptual distinction by focusing first on the doctrine of substantive unconscionability. I …
The End Of Jurisprudence, Scott Hershovitz
The End Of Jurisprudence, Scott Hershovitz
Articles
For more than forty years, jurisprudence has been dominated by the HartDworkin debate. The debate starts from the premise that our legal practices generate rights and obligations that are distinctively legal, and the question at issue is how the content of these rights and obligations is determined. Positivists say that their content is determined ultimately or exclusively by social facts. Anti-positivists say that moral facts must play a part in determining their content. In this Essay, I argue that the debate rests on a mistake. Our legal practices do not generate rights and obligations that are distinctively legal. At best, …
On Preferences And Promises: A Response To Harsanyi, Donald H. Regan
On Preferences And Promises: A Response To Harsanyi, Donald H. Regan
Articles
John C. Harsanyi sketches an entire normative and metaethical theory in under twenty pages. Combining breadth and brevity, his essay is useful and interesting. It reveals the interrelations between Harsanyi's positions on various issues as no longer work or series of articles could do. But by virtue of its programmatic nature, the essay creates a dilemma for a commentator, at least for one who finds many things to disagree with. If I responded to Harsanyi in the same sweeping terms in which he argues, we would end up with little more than opposing assertions. At the other extreme, I could …
The Seller's Action For The Price, John B. Waite
The Seller's Action For The Price, John B. Waite
Articles
WHEN a contract of sale has been broken by the buyer, before title has passed according to the usual rules of presumption, there arises the very practical question whether the seller can sue him for the purchase price, as such, or is limited to a suit for damages only. In the latter case his damage may happen to equal the purchase price, but it is usually considerably less than that amount. If the seller can recover the purchase price, as such, it must be because that price is legally due him as a consequence of the contract. The ultimate inquiry …
Performance Of Legal Obligation As A Consideration For A Promise, John B. Waite
Performance Of Legal Obligation As A Consideration For A Promise, John B. Waite
Articles
At a time when the true reasonableness of the common law and its responsiveness to the actualities of life are under criticism, it is interesting to find several cases, within the past year, affirming the old rule that performance of a legal duty is not consideration for a promise. In Vance v. Ellison, (V. Va.) 85 S. E. 776, suit was brought to enjoin the enforcement of a deed of trust executed by plaintiff to defendant, to secure payment of $1000 promised for legal services. It was admitted that when the deed was executed the defendant was already bound by …
Testamentary Promises To Pay, Nathan Abbott
Testamentary Promises To Pay, Nathan Abbott
Articles
The New York Law Journal for May 23, 1892, contains a suggestive editorial headed "A Will or Not a Will," in which the writer says "Interesting questions are constantly arising in the classification of instruments which, although expressing wishes or intentions to be carried out after death, are open to criticism on the score of testamentary execution." As is intimated by the writer, the difficulty of placing an instrument in either the class of contracts or wills is considerably diminished if the statutory provisions as to execution of wills are elaborate. Where holographic wills are allowed, or wills of personal …