Contracts Commons^™

Boilerplate: What Consumers Actually Think About It, Franklin G. Snyder, Ann M. Mirabito

Faculty Scholarship

One of the most difficult problems in modem contract law is the status of standard terms-often called "boilerplate"-in consumer transactions. On the one hand, standard terms are good because they reduce costs and increase efficiency and predictability. On the other hand, they can be used to impose unfair terms on consumers and even to evade important public policies. There is thus a vast and growing literature on the topic.

We know for a fact that most consumers do not read standard terms. They will not read them before they sign the writing or click "I agree" or "Buy now" on …

Employee Mobility And The Low Wage Worker: The Illegitimate Use Of Non-Compete Agreements, Jacqueline A. Carosa

The Docket

No abstract provided.

Technology, The Changing Nature Of Disputes, And The Future Of Equitable Principles In Canadian Contract Law, Conrad Flaczyk

Canadian Journal of Law and Technology

There are a number of legitimate reasons to be excited about the application of new technologies to make contracting more efficient. Unfortunately, each of those reasons is associated with certain risks for both contractors and contractees. In this article, I argue that an ‘‘equitable” approach to modern contract law — understood by the likes of Larry DiMatteo and others ‘‘not merely as a system of rules, but of rules tempered by standards and principles” — is particularly well suited for counterbalancing some of the undesirable contractual risks introduced by new technologies like blockchain, artificial intelligence, and smart contracts. A historical …

Learned Hand And The Objective Theory Of Contract Interpretation, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Contracts Formed By Software: When Things Go Wrong, Vincent Ooi

Research Collection Yong Pung How School Of Law

The use of software in contract formation is likely to become increasingly pervasive in light of the digital economy. Consequently, software can also be expected to exhibit greater autonomy and take on increasingly complex transactions and contract negotiations. It is important that a legally coherent, fair, certain and economically justified approach be taken to regulate such contracts.A ‘contracting problem’ arises when software is used to autonomously enter into contracts without human input. The formation of a valid contract requires, inter alia, an agreement between two or more parties, where each party exhibits an objective intention to be legally bound (the …

One-Legged Contracting, Ian Ayres, Gregory Klass

Georgetown Law Faculty Publications and Other Works

This response to Robin Bradley Kar & Margaret Jane Radin, Pseudo-Contract and Shared Meaning Analysis, 132 Harv. L. Rev. 1135 (2019), makes three broad points. It criticizes as arbitrary and essentializing Kar and Radin’s insistence of shared meaning as the core of contracting. It argues that even if shared meaning were the sine qua non of contracting, their proposal fails to achieve it because it does not assure that the terms would be cooperatively communicated. And it argues that their proposed enforcement standard would in practice severely limit freedom of contract and likely reduce consumer welfare. There is a …

Contractual Communication, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

In this Response, I will investigate the foundations of both shared and unshared meaning in legal communication. Part I takes a step back from contractual communication and offers a preliminary sketch of a general model of legal communication; the sketch draws on speech act theory and the work of Paul Grice, extending and modifying many of the insights developed by Kar and Radin. Part II turns to contractual communication, differentiating distinct “situations of contractual communication” and interrogating Kar and Radin’s Shared Meaning Analysis. Part III interrogates Kar and Radin’s distinction between “contract” and “pseudo-contract.” The conclusion of the Response briefly …

Legal Frameworks & Foreign Investment: A Primer On Governments’ Obligations, Kaitlin Y. Cordes, Lise Johnson, Sam Szoke-Burke, Rumbidzaii Mawen

Columbia Center on Sustainable Investment Staff Publications

Legal frameworks, and how they interact, are often invisible in the day to day. Yet they are powerful forces that influence government actions and that help to shape who benefits and who loses from foreign investment. Understanding these legal frameworks, and how they interact, is critical for anyone concerned with how foreign investment can be better harnessed to support, rather than weaken, sustainable development and human rights.

This primer provides a brief overview of host government obligations under international investment law, international human rights law, domestic law, and relevant investor-state contracts. It also highlights some of the ways in which …

Contracting For Fourth Amendment Privacy Online, Wayne A. Logan, Jake Linford

Scholarly Publications

No abstract provided.

Procreative Autonomy In Gestational Surrogacy Contracts, Vanessa Nahigian

Loyola of Los Angeles Law Review

With the growing practice of gestational surrogacy, many women bear children with whom they have no genetic relationship, allowing intended parents to have children of their own when they are otherwise unable to do so. This practice, however, creates a ripple in the abortion debate. This Note addresses procreative autonomy in the context of gestational surrogacy agreements, examines the underlying constitutional interests at stake for each party involved, and suggests a solution to fill California’s current statutory void.

Cacs And Doorknobs, Anna Gelpern, Jeromin Zettelmeyer

Georgetown Law Faculty Publications and Other Works

In response to debt crises, policy makers often feature Collective Action Clauses (CACs) in sovereign bonds among the pillars of international financial architecture. However, the content of official pronouncements about CACs suggests that CACs are more like doorknobs: a process tool with limited impact on the incidence or ultimate outcome of a debt restructuring. We ask whether CACs are welfare improving and, if so, whether they are pillars or doorknobs. The history of CACs in corporate debt suggests that CACs can be good, bad or unimportant depending on their vulnerability to abuse and the available alternatives, including bankruptcy and debt …

Getting What You Bargained For: Avoiding Legal Uncertainty In Survival Clauses For A Seller's Representations And Warranties In M&A Purchase Agreements, Will Pugh

The Journal of Business, Entrepreneurship & the Law

This note will examine the variables that effect the way that courts may limit parties’ contractual freedom to shorten or lengthen statutes of limitation. It will describe the legal levers that determine the applicable survival period and suggest ways that parties can reduce legal uncertainty around the “basket” of provisions including reps, warranties, survival, and indemnification periods. One key detail examined by this note is “borrowing statutes ”that could operate to import another state’s controlling statute. Additionally, this note will discuss ways in which the contractual right to indemnification for breached reps and warranties is a substantive right that is …

The Fatal Leviathan: A Hayekian Perspective Of Lex Mercatoria In Civil Law Countries, Fabio Núñez Del Prado Ch.

Pace International Law Review

Who should create default commercial rules? Should they be created in a constructivist way or should they be created rather through a spontaneous order? Should Kelsen’s positivism prevail in commercial law? Drawing on diverse libertarian literature, I will argue that, since courts do not play a dominant role in civil law countries and, more importantly, do not set precedents, default commercial rules should not be created by the legislator, but through the Lex Mercatoria.

International Surrogacy Arrangements: A Human Rights Case, Marisa Araújo

Biennial Conference: The Social Practice of Human Rights

The scientific development in Artificial Reproductive Technology (ART), especially IFV solutions, are promoting the development of our reproductive options. Surrogacy is now one of these solutions and new ethical and legal problems arise.

Domestic Laws have the most different positions. If there are countries that admit surrogacy arrangements, even commercial ones like the Florida State in the USA (and the particular case of India); others criminalize these procedures and others, like the UK (and Portugal), have a middle term position.

Considering the frontier zone in which surrogacy takes its place, the debate is more exuberant since the concrete legal solution …

Contracts (Supplementary Cases): 2019-20, Robert E. Forbes

Osgoode Course Casebooks

Course code: 1010.4

Arbitration And The Federal Balance, Alyssa King

Indiana Law Journal

Mandatory arbitration of statutory rights in contracts between parties of unequal bargaining power has drawn political attention at both the federal and state level. The importance of such reforms has only been heightened by the Supreme Court’s expansion of preemption under the FAA and of arbitral authority. This case law creates incentives for courts at all levels to prefer expansive readings of an arbitration clause. As attempts at federal regulation have stalled, state legislatures and regulatory agencies can expect to be subject to renewed focus. If state legislatures cannot easily limit arbitrability, an alternative is to try reforms that seek …

The Internet Of Bodies, Andrea M. Matwyshyn

William & Mary Law Review

This Article introduces the ongoing progression of the Internet of Things (IoT) into the Internet of Bodies (IoB)—a network of human bodies whose integrity and functionality rely at least in part on the Internet and related technologies, such as artificial intelligence. IoB devices will evidence the same categories of legacy security flaws that have plagued IoT devices. However, unlike most IoT, IoB technologies will directly, physically harm human bodies—a set of harms courts, legislators, and regulators will deem worthy of legal redress. As such, IoB will herald the arrival of (some forms of) corporate software liability and a new legal …

Third-Party Bankruptcy Releases: An Analysis Of Consent Through The Lenses Of Due Process And Contract Law, Dorothy Coco

Fordham Law Review

Bankruptcy courts disagree on the use of third-party releases in Chapter 11 bankruptcy plans, the different factors that circuit courts consider when deciding whether to approve a third-party release, and the impact of the various consent definitions on whether a release is or should be binding on the creditor. Affirmative consent, “deemed consent,” and silence are important elements in this discussion. Both contract law and due process provide lenses to evaluate consent definitions to determine whether nondebtor third-party releases should bind certain creditor groups. This Note proposes a solution that follows an affirmative consent approach to protect against due process …

Boilerplate Indignity, Erik Encarnacion

Indiana Law Journal

Commentators have long tried to sound the alarm about boilerplate contracts, pointing out threats ranging from the loss of privacy rights to the erosion of public law and democratic self-governance. This Article argues that this list of concerns misses something important: that imposing certain boilerplate terms on individuals is incompatible with their dignity. After explaining and defending the conception of dignity presupposed here, this Article shows how boilerplate accountability waivers—like arbitration clauses—prevent people from accessing the distinctive dignity-vindicating role of courts and degrade their status as legal persons. And because governments may legitimately protect dignity interests, proposed reforms like the …

Protecting Consumers As Sellers, Jim Hawkins

Indiana Law Journal

When the majority of modern contract and consumer protection laws were written in the 1950s, ’60s, and ’70s, consumers almost always acted as buyers, and businesses almost always acted as sellers. As a result, these laws reflect a model of strong sellers and weak buyers. But paradigms are shifting. Advances in technology and constraints on consumers’ financial lives have pushed consumers into new roles. Consumers today often act as sellers—hawking gold to make ends meet, peddling durable goods on eBay, or offering services in the sharing economy to make a profit. Consumers and business models have changed, but the laws …

Bitcoin: Order Without Law In The Digital Age, John O. Mcginnis, Kyle Roche

Indiana Law Journal

Modern law makes currency a creature of the state and ultimately the value of its currency depends on the public’s trust in that state. While some nations are more capable than others at instilling public trust in the stability of their monetary institutions, it is nonetheless impossible for any legal system to make the pre-commitments necessary to completely isolate the governance of its money supply from political pressure. This proposition is true not only today, where nearly all government institutions manage their money supply in the form of central banking, but also true of past private banking regimes circulating their …

Contracting For Healthcare: Price Terms In Hospital Admission Agreements, George A. Nation Iii

Dickinson Law Review (2017-Present)

This article discusses the application of contract law principles to the relationship between hospitals and patients to determine how much patients owe for the health care they receive. For patients who are covered by in-network health insurance the exact nature of the contract created with the hospital usually is not relevant to the patient’s financial obligation because the patient’s contract with the hospital is superseded by the contract between the patient’s health insurer and the hospital. Nevertheless, even in-network patients are financially impacted, via increased insurance premiums, by the contract analysis discussed here, and for the increasing number of patients …

No Forum To Rule Them All: Comity And Conflict In Transnational Frand Disputes, Eli Greenbaum

Washington Law Review

Recent years have seen an explosion in FRAND litigation, in which parties commit to license intellectual property under “fair, reasonable and non-discriminatory” (FRAND) terms, but they cannot agree on the meaning of that commitment. Much of this litigation is multinational and involves coordinating patent, antitrust, and contract claims across several jurisdictions. A number of courts and commentators have aimed to centralize and thereby streamline these disputes, whether by consolidating all litigation in one judicial forum or through the creation of a comprehensive arbitral process. This Article argues that such efforts are misguided—FRAND disputes are particularly unamenable to centralization, and the …

Mere Conduit, David G. Carlson

Articles

"Mere conduit" is a legal fiction in fraudulent transfer and other avoidance cases. This article argues that the legal fiction is misleading, unnecessary and rendered obsolete by the Supreme Court's recent opinion in Merit Management Group v. FTI Consulting, Inc. (2018). The article further contends that a huge majority of leading cases confound fraudulent transfer law with the law of corporate theft. This error leads to depriving financial intermediaries of their opportunity to avoid liability on the ground of being bona fide transferees for value. Finally, courts often mistake banks as initial transferees of fraudulent transfers (absolutely liable in spite …

The Uniform Commercial Code Survey: Introduction, Jennifer S. Martin, Colin P. Marks, Wayne Barnes

Faculty Scholarship

The survey that follows highlights the most important developments of 2018 dealing with domestic and international sales of goods, personal property leases, payments, letters of credit, documents of title, investment securities, and secured transactions.

Contract Interpretation With Corpus Linguistics, Stephen C. Mouritsen

Washington Law Review

Courts and scholars disagree about the quantum of evidence that is necessary to determine the meaning of contractual provisions. Formalists favor excluding extrinsic evidence unless the contractual text is found to be ambiguous. Contextualists, by contrast, look to extrinsic evidence to support claims about contractual meaning even absent a finding of ambiguity. The formalist approach is faulted for failing to provide a meaningful account of the parties’ intentions and for placing heavy reliance upon the judge’s own linguistic intuitions and general-use English dictionaries—both problematic guides to plain meaning. At the same time, the contextualist approach may impose significant costs on …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Specific Performance And The Thirteenth Amendment, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Reconsidering Contractual Consent: Why We Shouldn't Worry Too Much About Boilerplate And Other Puzzles, Nathan B. Oman

Nathan B. Oman

Our theoretical approaches to contract law have dramatically over-estimated the importance of voluntary consent. The central thesis of this article is that voluntary consent plays at best a secondary role in the normative justification of contract law. Rather, contract law should be seen as part of an evolutionary process of finding solutions to problems of social organization in markets. Like natural evolution, this process depends on variation and feedback. Unlike natural evolution, both the variation and the feedback mechanisms are products of human invention. On this theory, consent serves two roles in contract law. First, consent makes freedom of contract …

Promise And Private Law, Nathan B. Oman

Nathan B. Oman

This essay was part of a symposium on the thirtieth anniversary of the publication of Charles Fried's Contract as Promise and revisits Fried's theory in light of two developments in the private-law scholarship: the rise of corrective justice and civil-recourse theories. The structural features that motivate these theories-the bilateralism of damages and the private standing of plaintiffs-are both elements of the law of contracts that Contract as Promise sets out to explain. I begin with the issue of bilateralism. Remedies--in particular the defense of expectation damages--occupy much of Fried's attention in Contract as Promise, and he insists that this particular …