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Articles 1 - 22 of 22
Full-Text Articles in Law
The Parol Evidence Rule And The United Nations Convention On Contracts For The International Sale Of Goods: Justifying Beijing Metals & Minerals Import/Export Corp. V. American Business Center, Inc., David H. Moore
BYU Law Review
No abstract provided.
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 …
The Use Of Penalty Clauses In Location Incentive Agreements, Matthew T. Furton
The Use Of Penalty Clauses In Location Incentive Agreements, Matthew T. Furton
Indiana Law Journal
No abstract provided.
The Federal Arbitration Act And Individual Employment Contracts: A Better Means To An Equally Just End, William F. Kolakowski Iii
The Federal Arbitration Act And Individual Employment Contracts: A Better Means To An Equally Just End, William F. Kolakowski Iii
Michigan Law Review
This Note argues that courts should adopt a narrow reading of the employment contract exception to the FAA, thus making arbitration agreements in most individual employment contracts enforceable under the Act. Part I argues that a textual analysis of the FAA supports a narrow interpretation of the exception. Because some courts and commentators have argued that the text favors a broad interpretation, Part II examines the legislative history of the exception and demonstrates that no firm conclusions can be drawn about congressional intent regarding the exception's scope. Finally, Part III demonstrates that a narrow reading of the exception best serves …
The Disclosure Obligations Of Partners Inter Se Under The Revised Uniform Partnership Act Of 1994: Is The Contractarian Revolution Failing?, Allan W. Vestal
The Disclosure Obligations Of Partners Inter Se Under The Revised Uniform Partnership Act Of 1994: Is The Contractarian Revolution Failing?, Allan W. Vestal
William & Mary Law Review
No abstract provided.
Intellectual Property And The Costs Of Commercial Exchange: A Review Essay, Robert P. Merges
Intellectual Property And The Costs Of Commercial Exchange: A Review Essay, Robert P. Merges
Michigan Law Review
A Review of The Commercial Law of Intellectual Property by Peter A. Alces and Harold F. See
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 …
Cardozo And Posner: A Study In Contracts, Lawrence A. Cunningham
Cardozo And Posner: A Study In Contracts, Lawrence A. Cunningham
William & Mary Law Review
No abstract provided.
Contracts, Copyright And Preemption In A Digital World, I Trotter Hardy
Contracts, Copyright And Preemption In A Digital World, I Trotter Hardy
Richmond Journal of Law & Technology
Copyright is designed to provide some form of protection against unauthorized use of original informational materials. The rapid shift of information production and distribution to electronic form, with its corresponding ease of copying, naturally makes copyright-dependent industries nervous. Much talk in the news and on the "net" these days is about the future of copyright law, a law developed in an age of print and now perhaps too tied to that medium to have ready application to today's information technology.
A Defense Of Judicial Reconstruction Of Contracts, Mark P. Gergen
A Defense Of Judicial Reconstruction Of Contracts, Mark P. Gergen
Indiana Law Journal
No abstract provided.
In Defense Of The Impossibility Defense, Gerhard Wagner
In Defense Of The Impossibility Defense, Gerhard Wagner
Loyola University Chicago Law Journal
No abstract provided.
The Internationalization Of Contractual Conflicts Law, Patrick J. Borchers
The Internationalization Of Contractual Conflicts Law, Patrick J. Borchers
Vanderbilt Journal of Transnational Law
Professor Borchers maintains that United States conflict of laws rules regarding contracts have long had an international character. This Article reviews the development of contractual conflicts law and examines how, through Joseph Story's treatises, the United States law in this area assumed an international perspective.
These international influences have played and will increasingly play an important role in the development of U.S. contractual conflicts rules. This influence can be seen in both choice-of-forum and choice-of-law agreements. Both have been upheld by U.S. courts initially in international cases, which presented starker contrasts in choice of law or choice of forum. Once …
Warranties Against Infringement In The Sale Of Goods: A Comparison Of U.C.C. § 2-312(3) And Article 42 Of The U.N. Convention On Contracts For The International Sale Of Goods, Joseph J. Schwerha Iv
Warranties Against Infringement In The Sale Of Goods: A Comparison Of U.C.C. § 2-312(3) And Article 42 Of The U.N. Convention On Contracts For The International Sale Of Goods, Joseph J. Schwerha Iv
Michigan Journal of International Law
Gone are the days of simple sales contracts. Today's corporate lawyers must have not only a substantial understanding of basic commercial law, but also of the related intellectual property law. Because of the shrinking global economy, such knowledge must rise to an international level.
Caught Between Rocks And Hard Places: The Plight Of Reinsurance Intermediaries Under U.S. And English Law, Stephen W. Schwab, Peter G. Gallanis, David E. Mendelsohn, Bradley V. Ritter
Caught Between Rocks And Hard Places: The Plight Of Reinsurance Intermediaries Under U.S. And English Law, Stephen W. Schwab, Peter G. Gallanis, David E. Mendelsohn, Bradley V. Ritter
Michigan Journal of International Law
Accordingly, Part I of this article provides a review of the role intermediaries have played in the recent spate of insurance company insolvencies and an overview of intermediary rights and duties. Part II then progresses to a discussion of English intermediary law, analyzing how the general English rules apply to intermediaries when a cedent or reinsurer becomes insolvent. Part III addresses the same issues under U.S. law, tracing the most recent statutory developments from their cause and considering their effect on reinsurance transactions. This article concludes with a discussion of how English and U.S. law interact in reinsurance transactions, pointing …
Right Of First Refusal And The Package Deal, Bernard Daskal
Right Of First Refusal And The Package Deal, Bernard Daskal
Fordham Urban Law Journal
A persistent problem in right-of-first-refusal jurisprudence has been the effect of an acceptable third-party offer for a package of properties, a portion of which is burdened. In determining the effect of such package deals, courts have primarily relied on principles related to the nature and operation of rights of first refusal. Unfortunately, this approach has led different courts to reach disparate and inconsistent results.The problems posed by the package deal, of course, could be remedied by the parties themselves through a provision addressing the effect of such a transaction on the rightholder's privilege. The provision would answer whether the package …
Preserving Real Estate Contract Financing In Washington: Resisting The Pressure To Eliminate Forfeiture, Thomas Leo Mckeirnan
Preserving Real Estate Contract Financing In Washington: Resisting The Pressure To Eliminate Forfeiture, Thomas Leo Mckeirnan
Washington Law Review
There is pressure in Washington to abolish the forfeiture remedy from real estate contracts. Eliminating forfeiture would cripple the real estate contract and thus provide a disincentive for sellers to finance sales of their property. This result would be economically unsound and in conflict with the public policy in favor of promoting home ownership. Instead of abolishing forfeiture, the Washington State Legislature should amend current legislation to provide a more sensible and certain forfeiture remedy.