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Contracts Without Consent: Exploring A New Basis For Contractual Liability, Omri Ben-Shahar Jan 2004

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 ...


Mutual Assent Versus Gradual Ascent: The Debate Over The Right To Retract, Omri Ben-Shahar Jan 2004

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, three ...


'Agreeing To Disagree': Filling Gaps In Deliberately Incomplete Contracts, Omri Ben-Shahar Jan 2004

'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.


Forward [To Freedom From Contract Symposium], Omri Ben-Shahar Jan 2004

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 ...


The Tentative Case Against Flexibility In Commercial Law, Omri Ben-Shahar Jan 1999

The Tentative Case Against Flexibility In Commercial Law, Omri Ben-Shahar

Articles

Well-rooted in modern commercial law is the idea that the law and the obligations that it enforces should reflect the empirical reality of the relationship between the contracting parties. The Uniform Commercial Code ("Code") champions this tradition by viewing the performance practices formed among the parties throughout their interaction as a primary source for interpreting and supplementing their explicit contracts. The generous recognition of waiver and modifications, as well as the binding force the Code accords to course of performance, course of dealings, and customary trade usages, effectively permits unwritten commercial practices to vary and to erode explicit contractual provisions.


Effectiveness Of Oral Contracts, Within The Statute Of Frauds, John B. Waite Jan 1918

Effectiveness Of Oral Contracts, Within The Statute Of Frauds, John B. Waite

Articles

In Morris v. Baron and Co., (House of Lords, 1917), 87 L. J. R. (K. B.) 145, plaintiff and defendant had entered into a contract of sale and plaintiff, as vendor, had delivered part of the goods agreed upon. Delivery of the remainder would have been a condition precedent to any recovery by the plaintiff. This contract, however, was followed by a second one, not in writing, whereby plaintiff was absolved from delivering the rest of the goods, but by which he agreed that he would deliver them if the defendant should so request. Thereafter plaintiff brought this action for ...


Recovery Of The Purchase Price Before Title Has Passed, John B. Waite Jan 1916

Recovery Of The Purchase Price Before Title Has Passed, John B. Waite

Articles

In an action recently instituted by The General Electric Co. to recover on a contract to manufacture certain machinery for the defendant, which machinery the defendant had refused to accept, the trial court adopted the contract price as the measure of damages. The upper court approved this measure of damages, rejecting the argument that the measure should have been the difference between the market value and the contract price, and dismissed, as no longer appropriate to modern conditions, the decisions in Bement v. Smith, 15 Wend. (N. Y.) 493, and Shawhan v. Van Nest. 25 Oh. St. 490. The court ...