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Articles 1 - 14 of 14
Full-Text Articles in Law
Of Fine Lines, Blunt Instruments And Half-Truths: Business Acquisition Agreements And The Right To Lie, Jeffrey M. Lipshaw
Of Fine Lines, Blunt Instruments And Half-Truths: Business Acquisition Agreements And The Right To Lie, Jeffrey M. Lipshaw
ExpressO
In this article, I expand upon a happy coincidence (for scholars) in reconciling the overlap between contract and fraud. Both the recent book by Ian Ayres and Gregory Klass and the Delaware Court of Chancery in Abry Partners Acquisition V, L.P. v. F& W Acquisition, LLC addressed the issue of promissory fraud – the making of a contract as to which the promisor had no intention of performing. Each treatment, however, in focusing on fraudulent affirmative representations, falls short of (a) recognizing the fundamental aspect of deceptive promising in a complex deal, namely the half-truth, (b) articulating an appropriate doctrinal …
Got Wheels?: Article 2a, Standardized Rental Car Terms, And Unilateral Private Ordering, Irma S. Russell
Got Wheels?: Article 2a, Standardized Rental Car Terms, And Unilateral Private Ordering, Irma S. Russell
Faculty Works
This Article examines the modern system of unilateral private ordering facilitated by form contracts in the context of standard form contracts for renting a car. Modern law accepts the presumption of a free market and free bargain in the setting of form contracting despite the lack of bargaining power on the consumer side of the deal. The article assesses the importance of defaults and presumptions in contract law, and presents the results of an empirical review of standard agreement forms of ten leading rental car companies, noting examples of significant alterations to common law defaults. The article also explores the …
Punitive Damages, Liquidated Damages, And Clauses Penale In Contract Actions: A Comparative Analysis Of The American Common Law And The French Code Civil, Charles R. Calleros
Punitive Damages, Liquidated Damages, And Clauses Penale In Contract Actions: A Comparative Analysis Of The American Common Law And The French Code Civil, Charles R. Calleros
ExpressO
Although American common law allows punitive damages for reckless or intentional torts, it will neither allow a jury to assess punitive damages for breach of contract nor permit enforcement of a contractual damages clause that is deemed to be punitive. This approach is rooted in an early Chancery practice of granting equitable relief from oppressive penal bonds and has been more recently justified as a means of facilitating efficient breach. Economic efficiency, however, can be accomplished even if punitive damages could be assessed for intentional breach, because the parties would have an incentive to negotiate a release from the first …
The Strategy Of Boilerplate, Robert B. Ahdieh
The Strategy Of Boilerplate, Robert B. Ahdieh
Faculty Scholarship
Boilerplate can be exciting. It is this, perhaps hard-to-swallow, proposition that the present analysis attempts to convey. Particularly in invoking the work of Thomas Schelling on the role of focal points in coordination games, it offers what can be characterized as a "strategic" theory of boilerplate, in which boilerplate plays an active, even aggressive, role.
Contrary to the relatively inert quality of boilerplate implied by conventional treatments in the legal literature, boilerplate may serve essential signaling and coordination functions in contract bargaining. In appropriate circumstances, its proposed usage may be a valuable weapon in the arsenal of a bargaining party, …
To Err Is Human, Keith A. Rowley
To Err Is Human, Keith A. Rowley
Scholarly Works
This essay reviews Allan Farnsworth's final book, Alleviating Mistakes: Reversal and Forgiveness for Flawed Perceptions (Oxford U. Press 2004). There are many kinds of mistakes. One kind - a rational, well-intended decision or act that results in unanticipated, negative consequences - was the principal subject of Allan Farnsworth's previous foray into the realm of contractual angst: Changing Your Mind: The Law of Regretted Decisions (Yale U. Press 1998). Another kind - the subject of this book - is a mistake caused by an inaccurate, incomplete, or incompetent mental state at the time of an act or decision that results in …
Waiver Or Modification: That Is The Question, Michael G. Hillinger
Waiver Or Modification: That Is The Question, Michael G. Hillinger
Faculty Publications
The elusive distinction between waiver and contract modification has reared its head in Massachusetts. What's the difference? A party who "waives" a contract term can retract the waiver in the absence of the other party's detrimental reliance, whereas a party cannot unilaterally retract a contract modification. Stating the legal consequences that flow from each event is easy. Figuring out which event has occurred is not.
Why Unify Contract And Tort Remedies? A Reply To Professor Dagan, Dr. Yehuda Adar
Why Unify Contract And Tort Remedies? A Reply To Professor Dagan, Dr. Yehuda Adar
Yehuda Adar Dr.
-This Article is in Hebrew-
The remedies section in the Israeli draft civil code attempts to create a unified law of remedies for the breach of any civil obligation, including originating in tort law and contract law. In his article, "The Risks of Codification: On Over-Coherence and Multiplicity of Remedies", Professor Dagan forcefully criticizes this attempt. The present article demonstrates that the two main criticisms raised by Dagan - against the unification of remedies and against the attempt to fortify the remedial response to breach of civil obligations - are unconvincing, from both a theoretical and a pragmatic point of …
Why Sell What You Can License?, Contracting Around Statutory Protection Of Intellectual Property, Elizabeth I. Winston
Why Sell What You Can License?, Contracting Around Statutory Protection Of Intellectual Property, Elizabeth I. Winston
Scholarly Articles
Historically, the transfer of goods has been through sale, a model regulated by public legislation. Increasingly, however, the transfer of goods is occurring through licensing, a model regulated by private legislation. Privately-legislated licenses - for such chattels as musical and written works and agricultural goods - are being used to circumvent publicly-legislated restrictions on intellectual property. Private legislation should not circumvent public legislation, and intellectual property owners should not be allowed to circumvent the statutory scheme for protection of intellectual property. Licenses that augment publicly-legislated protection of intellectual property support the traditional role of contracts and should be enforced. Licenses …
Friendship & The Law, Ethan J. Leib
Friendship & The Law, Ethan J. Leib
Faculty Scholarship
This Article's central argument is that the law needs to do a better job of recognizing, protecting, respecting, and promoting friendships. The law gives pride of place to other statuses--family and special professional relationships are obvious ones--but the status of the friend is rarely relevant to legal decisionmaking and public policymaking in a consistent way. After defining the concept of the friend, I offer a normative argument for why the law should promote a public policy of friendship facilitation and for why the law ignores friendships only at its peril. I highlight how the law already finds friendship relevant in …
Uniform Commercial Code Survey: Sales, Keith A. Rowley, Carolyn L. Dessin, Larry T. Garvin, Robyn L. Meadows
Uniform Commercial Code Survey: Sales, Keith A. Rowley, Carolyn L. Dessin, Larry T. Garvin, Robyn L. Meadows
Scholarly Works
2005 Uniform Commercial Code Survey: Sales
The Often Imitated, But Not Yet Duplicated, Revised Uniform Commercial Code Article 1, Keith A. Rowley
The Often Imitated, But Not Yet Duplicated, Revised Uniform Commercial Code Article 1, Keith A. Rowley
Scholarly Works
Unlike Revised Uniform Commercial Code Article 9 (1999), which every state and the District of Columbia enacted within roughly two years of its promulgation, states have been slower to warm to Revised UCC Article 1 (2001). Nearly seven years after the American Law Institute and the National Conference of Commissioners on Uniform State Law promulgated it, thirty-three states have enacted their own versions of Revised UCC Article 1. None of the thirty-three has enacted the uniform version in its entirety. All thirty-three enacting states have rejected the uniform choice-of-law provision (§ 1-301) in favor of retaining language based on pre-Revised …
The Best Puffery Article Ever, David A. Hoffman
The Best Puffery Article Ever, David A. Hoffman
All Faculty Scholarship
This Article provides the first extensive legal treatment of an important defense in the law of fraud and contracts: puffery. Legal authorities commonly say they make decisions about whether defendants should be able to utter exaggerated, optimistic, lies based on assumptions about buyer behavior, concluding that consumers do not rely on such speech. However, as the Article shows, such analyses are proxies for a deeper analytical question: does the speech encourage or discourage a type of consumption activity that the court deems welfare maximizing? The Article presents a novel constitutional analysis of puffery doctrine that focuses on the meaning of …
Commodification And Contract Formation: Placing The Consideration Doctrine On Stronger Foundations, David Gamage, Allon Kedem
Commodification And Contract Formation: Placing The Consideration Doctrine On Stronger Foundations, David Gamage, Allon Kedem
Articles by Maurer Faculty
Under the traditional consideration doctrine, a promise is only legally enforceable if it is made in exchange for something of value. This doctrine lies at the heart of contract law, yet it lacks a sound theoretical justification a fact that has confounded generations of scholars and created a mess of case law.
This article argues that the failure of traditional justifications for the doctrine comes from two mistaken assumptions. First, previous scholars have assumed that anyone can back a promise with nominal consideration if they wish to do so. We show how social norms against commodification limit the availability of …
Revisiting Austin V. Loral: A Study In Economic Duress, Contract Modification And Framing, Meredith R. Miller
Revisiting Austin V. Loral: A Study In Economic Duress, Contract Modification And Framing, Meredith R. Miller
Scholarly Works
Austin v. Loral, 29 N.Y.2d 124 (1971), is a favorite among Contracts casebooks because the New York Court of Appeals held that it was a "classic" example of economic duress. It involved Austin, a small gear part manufacturer, who had entered into a subcontract to provide gear parts to Loral, a publicly-traded defense industry supplier. Loral had a contract with the U.S. government to supply radar sets, to be used in the U.S. efforts in Vietnam. Midway through performance of the subcontract, Austin apparently refused to continue to deliver the gear parts unless Loral acceded to certain demands, which included …