Law Commons^™

Toward A Fairer Model Of Consumer Assent To Standard Form Contracts: In Defense Of Restatement Subsection 211(3), Wayne R. Barnes

Faculty Scholarship

Standard-form contracts permeate our very existence, and now even include contracts we assent to online by way of “clickwrap” and “browsewrap” methods. Notwithstanding the ever-increasing presence and complexity of such standard-form contracts, both offline and online, the law of contracts in this area has remained fairly static since the 18th century and before. The only meaningful salve to this problem thus far has been the unconscionability doctrine, but that doctrine tends to be reserved for the harshest and severest terms. Therefore, a new tool is needed for courts to protect consumers’ interests in this area. Section 211(3) of the Restatement …

Rent Concessions And Illegal Contract Penalties In Texas, James P. George

Faculty Scholarship

Rent concessions-in theory a foregoing of money-ironically have become a new income source for Texas landlords. Although there is nothing wrong with discounting prices, there is something wrong with re-imposing that discount on a breaching tenant. The reimposed rent concession is a penalty that the landlord would not have collected in the routine performance of the contract and as a penalty, violates one of the oldest edicts in Anglo-American contract law.

This article arose from advice given and brief services rendered to clients in a landlord-tenant matter. Using the facts and documents from that dispute, this article reviews the history …

Client Responsibility For Lawyer Conduct: Examining The Agency Nature Of The Lawyer-Client Relationship., Grace M. Giesel

Faculty Scholarship

In the 1962 decision of Link v. Wabash Railroad Co., the United States Supreme Court reviewed a district court's sua sponte dismissal of a diversity negligence action. Six years after the plaintiff filed the matter, the district court scheduled a pretrial conference and gave counsel two weeks notice of the scheduled conference. On the day of the conference, plaintiffs counsel called the court to say that he would be unable to attend the conference, giving the impolitic reason that he was busy preparing some documents for the state supreme court. The attorney did not attend the conference, and the district …

Hoffman V. Red Owl Stores And The Myth Of Precontractual Reliance, Robert E. Scott

Faculty Scholarship

For decades there has been substantial uncertainty regarding when the law will impose precontractual liability. The confusion is partly attributable to the unfortunate case of Hoffman v. Red Owl Stores and to the unusual degree of scholarly attention that it has attracted. A careful examination of the record of the Hoffman case reveals facts that are much different from conventional understanding. The disagreement between Joseph Hoffman and Red Owl Stores resulted from a fundamental misunderstanding between the parties regarding the terms of Hoffnan's capital contribution to the franchise. The misunderstanding was largely a product of Hoffnan's penchant for moving assets …

Precontractual Liability And Preliminary Agreements, Alan Schwartz, Robert E. Scott

Faculty Scholarship

For decades, there has been substantial uncertainty regarding when the law will impose precontractual liability. The confusion is partly due to scholars' failure to recover the law in action governing precontractual liability issues. In this Article, Professors Schwartz and Scott show first that no liability attaches for representations made during preliminary negotiations. Courts have divided, however, over the question of liability when parties make reliance investments following a "preliminary agreement." A number of modern courts impose a duty to bargain in good faith on the party wishing to exit such an agreement. Substantial uncertainty remains, however, regarding when this duty …

Comments On The European Commission’S Proposal For A Regulation Of The European Parliament And The Council On The Law Applicable To Contractual Obligations (Rome I), Ralf Michaels, Jürgen Basedow, Wolfgang Wurmnest

Faculty Scholarship

No abstract provided.

Contract Law And Distribution In The Age Of Welfare Reform, Daniela Caruso

Faculty Scholarship

This Article tracks the ongoing adaptation of U.S. contract law to the 1990s’ contraction of the welfare state. Some courts strive to compensate for the shortage of welfare services and to pursue redistributive goals. This Article provides examples of this trend and then analyzes the non-linear relation between doctrines, judicial redistribution, and welfare politics in both case law and scholarship. Finally, this Article discusses the role of socially sensitive judicial discourse in light of contemporary welfare politics and explains its continuing importance.

Desperately Seeking Consideration: The Unfortunate Impact Of U.C.C. Section 2-306 On Contract Interpretation, Victor P. Goldberg

Faculty Scholarship

In Section 2-306, the Uniform Commercial Code's drafters intended to assure that two classes of agreements would be enforceable, even though they might appear on their face to be illusory. Variable quantity (output and requirements) contracts were buttressed by reading in a good faith standard (§ 2-306(1)) and exclusive dealing contracts were made enforceable by reading in a best efforts standard (§ 2-306(2)). This was a big mistake. In this paper I show how these two fixes create problems for interpreting contracts. I use two well-known cases, Feld v. Henry S. Levy & Sons, Inc. and Wood v. Lucy, …

Transactional Economics: Victor Goldberg's Framing Contract Law, Mark P. Gergen, Victor P. Goldberg, Stewart Macaulay, Keith A. Rowley

Faculty Scholarship

Professor Mark Gergen: Thank you. It is an honor to speak to this group and to be on a panel with Stewart Macaulay, Keith Rowley, and Victor Goldberg. I have an enormous amount of respect for the three. Keith had the misfortune of being a student of mine in Federal Income Tax.

Framing Contract Law offers a wealth of information about familiar cases. Victor argues that in construing contracts, courts should be attentive to how people engineer contracts to minimize transaction costs. He shows that courts often err in this regard, imposing unnecessary costs. To make his case, Victor delves …

Contracts Without Law: Sovereign Versus Corporate Debt, Mitu Gulati, George G. Triantis

Faculty Scholarship

Although extralegal enforcement is widely acknowledged, the conventional understanding of written contract provisions, such as the complex and detailed provisions in bond contracts, is that they are drafted to be enforced by law. This framing neglects the value of contracts in shaping extralegal forces, particularly where litigation is unlikely or not possible. Sovereign debt contracts provide an example in which lengthy and detailed contracts play a key role even though the debtor is largely litigation-proof. We examine how contract provisions in sovereign debt contracts improve the efficiency of creditor control outside the realm of legal enforcement.

“An Ingenious Man Enabled By Contract”: Entrepreneurship And The Rise Of Contract, Catherine Fisk

Faculty Scholarship

A legal ideology emerged in the 1870s that celebrated contract as the body of law with the particular purpose of facilitating the formation of productive exchanges that would enrich the parties to the contract and, therefore, society as a whole. Across the spectrum of intellectual property, courts used the legal fiction of implied contract, and a version of it particularly emphasizing liberty of contract, to shift control of workplace knowledge from skilled employees to firms while suggesting that the emergence of hierarchical control and loss of entrepreneurial opportunity for creative workers was consistent with the free labor ideology that dominated …

Clicking And Cringing, Nancy Kim

Faculty Scholarship

Shrinkwrap, clickwrap, and browsewrap licenses have complicated contract law by introducing nontraditional methods of contracting to govern the use of software. The retention of the underlying intellectual property by the licensor, and the malleable qualities of software, give rise to the ability and the need to set parameters of use. The courts have tended to defer to the ownership rights of licensors by claiming that there is valid contract formation, even in "rolling contract" situations. In this Article, I propose that a consumer's assent to a transaction should not be transmuted into blanket assent to each individual term of a …

Lawyers Asleep At The Wheel? The Gm-Fisher Body Contract, Victor P. Goldberg

Faculty Scholarship

In the analysis of vertical integration by contract versus ownership one event has dominated the discussion – General Motors' merger with Fisher Body in 1926. The debates have all been premised on the assumption that the ten-year contract between the parties signed in 1919 was a legally enforceable agreement. However, it was not. Because Fisher's promise was illusory the contract lacked consideration. This note suggests that GM's counsel must have known this. It raises a significant question in transactional engineering: what is the function of an agreement that is not legally enforceable.

Contract As Agreement, Lawrence Solan

Faculty Scholarship

No abstract provided.

Legal Determinacy And Moral Justification, Jody S. Kraus

Faculty Scholarship

Since this is a conference on law and morality, and the topic of this panel is theories of contract law, I thought it particularly appropriate to ask how a theory of contract law can provide a moral justification for contract law. That question can be answered only by providing a more general account of how a legal theory can provide a moral justification for any area of the private law. In this preliminary Essay, I argue that in order morally to justify the private law, a theory of the private law must derive reasons from a normative political theory that …

If You Prompt Them, They Will Rule: The Warranty Of Habitability Meets New Court Information Systems, Mary Zulack

Faculty Scholarship

A recent conference on housing rights invited participants to think about the impacts, actual and potential, of the judge-made doctrine of the implied warranty of habitability in residential tenancies. This essay focuses on the warranty, and suggests establishing technology systems for judges to help them give new
life to the doctrine and thereby to accelerate actual repair of rental housing through court mandates.

The conference attendees seemed to agree that when trial judges are presented with claimed breaches of the warranty of habitability, they have not, on the whole, used the doctrine to order that repairs actually be effectuated. They …