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Full-Text Articles in Law
Tort In A Contractual Matrix, John G. Fleming
Tort In A Contractual Matrix, John G. Fleming
Osgoode Hall Law Journal
This article addresses one aspect of the interface between tort and contract: the way tort law is affected, whether by extending or contracting its reach, by the parties coming together against a contractual structure. Two basic situations are considered. The first concerns the effect of a contractual limitation clause on the tort liability of, or to, a third party such as a subcontractor's to the building owner. The second considers what effect to attribute to a plaintiff's failure to protect himself or herself in advance by contracting against the risk
Is The Pearson Airport Legislation Unconstitutional?: The Rule Of Law As A Limit On Contract Repudiation By Government, Patrick J. Monahan
Is The Pearson Airport Legislation Unconstitutional?: The Rule Of Law As A Limit On Contract Repudiation By Government, Patrick J. Monahan
Osgoode Hall Law Journal
It has long been assumed that Parliament has unlimited power to enact legislation cancelling valid contracts and denying compensation to any persons affected. This paper challenges that conventional wisdom. The author argues that the principle of the rule of law requires that governments be accountable in the ordinary courts for wrongful actions of government officials. This principle is undermined if government is absolved from any liability for breach of a fairly bargained and valid contract. Thus, legislation purporting to abrogate contracts and deny compensation is invalid, since it violates the implied limits on legislative authority associated with the rule of …
Critiques Of The Limits Of Freedom Of Contract: A Rejoinder, Michael J. Trebilcock
Critiques Of The Limits Of Freedom Of Contract: A Rejoinder, Michael J. Trebilcock
Osgoode Hall Law Journal
This rejoinder to the foregoing critiques of the author's book, The Limits of Freedom of Contract, focuses on several themes: a) what range of contractually-related issues do courts possess the requisite institutional competence to address? b) whether problematic normative issues in contract law are amenable to rational analysis and at least provisional resolution, or are inherently indeterminate, contingent, and political? c) what the value of individual autonomy implies in terms of the type of transactions parties should be permitted to engage in? d) whether an "internal" rather than consequentialist theory of contract law is conceivable? and e) whether autonomy values …
Remedies When Contracts Lack Consent: Autonomy And Institutional Competence, Richard Craswell
Remedies When Contracts Lack Consent: Autonomy And Institutional Competence, Richard Craswell
Osgoode Hall Law Journal
Autonomy-based theories hold that enforceable contracts require the knowing and voluntary consent of the parties. In defining "knowing" and "voluntary," however, autonomy theorists have paid little attention to the remedy that will be granted if consent is round to be lacking, or to the question of what obligations (if any) will be enforced in place of the unconsented-to contract. In this paper, I expand on Michael Trebilcock's argument that considerations of institutional competence-specifically, the relative ability of courts and private actors to craft acceptable substitute obligations-should sometimes play a key role in defining what counts as "knowing" and "voluntary" consent.
Where Is The Freedom In Freedom Of Contract?: A Comment On Trebilcock's The Limits Of Freedom Of Contract, Hamish Stewart
Where Is The Freedom In Freedom Of Contract?: A Comment On Trebilcock's The Limits Of Freedom Of Contract, Hamish Stewart
Osgoode Hall Law Journal
Michael Trebilcock's recent exploration of the limits of freedom of contract systematically considers both the instrumental and the intrinsic value of freedom or autonomy in an economic analysis. A third way of thinking about the value of freedom of contract is to take it as a presupposition of contract law: that is, freedom of contract is not just instrumentally or intrinsically desirable, but is conceptually necessary to contract law. Two examples are presented to suggest that by not considering this third perspective, Trebilcock leaves himself without a structure in which to deal with some of the issues that trouble him.
The Dilemma Of Choice: A Feminist Perspective On The Limits Of Freedom Of Contract, Gillian K. Hadfield
The Dilemma Of Choice: A Feminist Perspective On The Limits Of Freedom Of Contract, Gillian K. Hadfield
Osgoode Hall Law Journal
In this essay I explore what Michael Trebilcock's work in The Limits of Freedom of Contract offers feminists in terms of a resolution or transcendance of the dilemma of choice. Trebilcock's work does not address the deepest feminist concerns about conflicts between autonomy and welfare, but it does shed light on narrower versions of the dilemma, providing an analytical framework for the feminist dilemma of choice and emphasizing the pervasiveness of this problem in contract law. Trebilcock's recommendation that society simultaneously use different institutions to promote different values also has salience for the feminist dilemma of choice.
Michael And Me: A Postmodern Friendship, Allan C. Hutchinson
Michael And Me: A Postmodern Friendship, Allan C. Hutchinson
Osgoode Hall Law Journal
This paper offers a review of The Limits of Freedom of Contract as an exercise in postmodern critique and politics. It examines the extent to which the book is informed by the postmodern motifs of contingency and indeterminacy. It attributes difficulties in Michael's analysis to a lack of postmodern nerve. Finally, it provides a contrast to a law-and-economics notion of citizenship which is applied to the problem of racist practices in the marketplace.
The Idea Of A Public Basis Of Justification For Contract, Peter Benson
The Idea Of A Public Basis Of Justification For Contract, Peter Benson
Osgoode Hall Law Journal
The essay has two main objects. The first is to take up and to develop certain of the difficulties that Professor Trebilcock finds with autonomy and welfare-based theories of contract law. The essay reaches the conclusion that efficiency, autonomy, and welfare approaches suffer from fundamental and yet qualitatively different kinds of defects. Moreover, in the course of its critical examination of these theories, the essay introduces and makes explicit an ideal of justification which The Limits of Freedom of Contract only implicitly assumes-an ideal of justification which the essay, following the recent work of Rawls, calls a "public basis of …