Law Commons^™

Liabilities For Design Defects In A Collaborative, Integrated, Digital Age, Juan Jonnathan Bravo, Jaime Gray

Jonnathan Bravo Venegas

The purpose of this article is to address the new challenges concerning liabilities arising from errors or defects in construction projects that employ new design methods and techniques such as BIM and new collaborative project delivery systems. Following an examination of some relevant legal issues, with particular emphasis on the Peruvian Civil Code, the authors propose that parties should clearly establish in their agreements the scope of work or services and the liability each of them should bear.

La Dialettica Di Principî E Regole Nel Diritto Europeo Deicontratti: Dal Pecl Al Cesl, E Oltre, Pietro Sirena

Pietro Sirena

The article aims at challenging the current definitions of the principles of law from the point of view of the European legal system. Its multi-levelled structure and its constitutional architecture, strongly based on the subsidiarity of the European Union, call for a new understanding of its principles. The authors of the article assume that the principles of European law are to be identified with the common core of the national legal orders, i.e. with the ius commune Europaeum, and with the constitutional condition of its application by the European Court of Justice. Such principles should be obtained through the critical …

Vulnerable Populations And Transformative Law Teaching: A Critical Reader, Chapter 6 - Vulnerability In Contracting: Teaching First-Year Law Students About Inequality And Its Consequences, Deborah Post, Deborah Zalesne

Deborah W. Post

Traditional legal pedagogy fails to demonstrate the relationship of contract to the subordination of vulnerable populations. As a result, students rarely see the complex web of interrelationships where economic activity takes place or the legal regime that maintains it. Students are not taught how to interrogate the discourse or dismantle the systems and structures that oppress subordinated communities. This Essay describes a technique that we have developed to help students learn the meaning of law and its cultural, social, and structural significance. The traditional framing of the study of contract doctrine as one that is objective, neutral, and fair avoids …

Soft Law And The Principle Of Fair And Equitable Decisionmaking In International Contract Arbitration, Larry Dimatteo

Larry A DiMatteo

This article provides a survey of the special relationship between international commercial arbitration and soft law instruments. It briefly traces the historical roots of the lex mercatoria to its present enunciation in the Convention on Contracts for the International Sale of Goods (CISG) and the UNIDROIT Principles of International Commercial Contracts. It discusses the characteristic of the hardness and softness of laws in an international commercial law context. The CISG is studied not only as a hard law, but also as an example of soft law. The affinity between soft law and international commercial arbitration is explored, as well as …

Forward: Advances In The Behavioral Analysis Of Law: Markets, Institutions, And Contracts, Avishalom Tor

Avishalom Tor

No abstract provided.

Terra Incognita: Un Aspecto Poco Estudiado De La Denominada Acción Pauliana, Fort Ninamancco Cordova

Fort Ninamancco Cordova

No abstract provided.

An Independent Contractor Speaks His Mind: Can He Lose His Government Contract? An Analysis Of Heiser V. Umbehr, Barbara J. Fick

Barbara J. Fick

This article previews the Supreme Court case Heiser v. Umbehr, 515 U.S. 1172 (1995). The author expected the Court to consider whether, and to what extent, a governmental unit can take into account an independent contractor's poltical speech in making decisions regarding the award or termination of government contracts.

Are All Contracts Alike?, Margaret F. Brinig

Margaret F Brinig

No abstract provided.

Engagement Rings Are Barbaric, Margaret Brinig

Margaret F Brinig

Margaret Brinig was quoted in the Salon magazine article Engagement rings are barbaric

By Shannon Rupp

"The real reason for engagement rings wasn’t lost on people of that era, however, as legal scholar Margaret Brinig noted when she researched the history of breach of promise laws. With the abolition of those laws in the 1930s came an increase in the sales of engagement rings to the masses."

Penalty Defaults In Family Law: The Case Of Child Custody, Margaret F. Brinig

Margaret F Brinig

This paper considers whether an amendment to state divorce laws that strengthens its joint custody preference operates as a traditional default rule, specifying what most divorcing couples would choose or as a penalty default rule the parties will attempt to contract around.

While the Oregon statutes that frame our discussion here, like most state laws, do not state an explicit preference for joint custody, shared custody is certainly encouraged by Section 107.179, which refers cases in which the parties cannot agree on joint custody to mediation and by Section 107.105, which requires the court to consider awarding custody jointly. In …

Unhappy Contracts: The Case Of Divorce Settlements, Margaret F. Brinig

Margaret F Brinig

This paper examines a particular type of contracts that is, sadly, increasingly frequent: the agreements produced by divorcing couples. They are unhappy contracts, agreements produced as a necessary part of exit from what is now suboptimal marriage. They are virtually required by many states and are, in theory at least, closely monitored by courts since, when children are involved, they will be incorporated into court orders.What parties to unhappy contracts do is attempt to minimize losses, rather than maximize gain. How are contracts structured that will do this, and how does a difference in the size or power of the …

"Money Can't Buy Me Love": A Contrast Between Damages In Family Law And Contract, Margaret F. Brinig

Margaret F Brinig

No abstract provided.

A Maternalistic Approach To Surrogacy: Comment On Richard Epstein's Surrogacy: The Case For Full Contractual Enforcement, Margaret F. Brinig

Margaret F Brinig

No abstract provided.

Rings And Promises, Margaret F. Brinig

Margaret F Brinig

No abstract provided.

Covenant And Contract, Steven Nock, Margaret F. Brinig

Margaret F Brinig

No abstract provided.

Contracting With Electronic Agents, Anthony J. Bellia

Anthony J. Bellia

Established contract doctrine provides no clear answer to the question whether exchanges arranged by the interaction of electronic agents are enforceable. This Article explores whether the law should enforce exchanges arranged by the interaction of electronic agents. It examine how normative theories of contractual obligation inform the issue, with an eye toward the strengths and weaknesses of each theory. The theories that most strongly support the enforcement of exchanges arranged by electronic agents, this Article explains, are those that ground contractual obligation in protecting the ability of individuals to pursue their reasonable objectives through reliable arrangements.

Il Contratto Alieno Del Diritto Comune Europeo Della Vendita (Cesl), Pietro Sirena

Pietro Sirena

No abstract provided.

"Contort": Tortious Breach Of The Implied Covenant Of Good Faith And Fair Dealing In Noninsurance Commercial Contracts - Its Existence And Desirability, Matthew J. Barrett

Matthew J. Barrett

Every contract contains an implied covenant of good faith and fair dealing which prohibits any contracting party from injuring another party's right to receive the benefits of the agreement. Breach of this implied covenant creates a cause of action in contract. Beginning twenty-five years ago, some courts also recognized a cause of action in tort for breach of this implied covenant in insurance contracts. In recent years, the California courts, the leaders in the development of “‘contort,”’ have repeatedly faced the issue whether courts should expand its application beyond the insurance context. Resolution of the issue is important because tort …

Party Sophistication And Value Pluralism In Contract, Meredith R. Miller

Meredith R. Miller

In a previous article, Contract Law, Party Sophistication and the New Formalism, 75 Missouri L. Rev. 493 (2010), I documented a trend in United States case law and scholarship that fashions a dichotomy between sophisticated and unsophisticated parties. That article set out to explain the trend as a theoretical compromise between formalism and realism in the face of a renewed formalism. However, as I noted in the previous article, the “new formalism” may not be formalism at all because it retains normative concerns. Indeed, the shift in legal thought may be more appropriately and simply characterized as embracing pluralism. This …

At The Brink Of Free Agency: Creating The Foundation For The Messersmith-Mcnally Decision - 1968-1975, Edmund P. Edmonds

Edmund P. Edmonds

"One of the most dramatic periods in baseball’s long history of labor relations occurred from 1968 through 1975. The Major League Baseball Players Association negotiated baseball’s first Basic Agreement in 1968 without the benefit of any leverage that could alter most of Organized Baseball’s long practices that controlled the players’ mobility and wages. In 1975, however, the union won an arbitration panel hearing that determined that pitchers Dave McNally and Andy Messersmith were free agents after playing one full season under the renewed option year of their contracts and filing a grievance under the newly adopted arbitration process. This stunning …

Presentation Slides - “Built To Suit” As An Instrument For The Business Constrution Or Renovation In The Contemporary Era: Definition, Characteristics And The Real Estate Receivables Certificates (Rerc)”, Claudia Ribeiro Pereira Nunes

Claudia Ribeiro Pereira Nunes

The construction or renovation is a high economic value investment to the entrepreneur. In many cases, this values disbursement, without prompt financial returns required to carry out the establishment construction or restructuring, hinders its own growth. Justified this work, therefore, implies the need to understand the Built to Suit and its relation to the Real Estate Receivables Certificates (RERC).The aim of this essay is to understand Built to Suit in Contemporary Era. The specific objectives are, after a brief historical analysis of the contract: (i) to outline the definition, (ii) submit their characteristics and special clauses, and (iii) understand the …

¿Si Te Toco, Te Pago? Lo Dices ¿En Serio?: Contextualizando La Teoría Del Contacto Social, Renzo E. Saavedra Velazco

Renzo E. Saavedra Velazco

No abstract provided.

La Forma En La Donación Propter Nuptias: ¿Una Excepción Que Se Convierte En Regla?, Marco Andrei Torres Maldonado, Mario Castillo Freyre

Marco Andrei Torres Maldonado

No abstract provided.

Anti-Social Contracts: The Contractual Governance Of Virtual Worlds, Joshua A.T. Fairfield

Joshua A.T. Fairfield

Virtual worlds have seized the imaginations of millions of people who now live, work, and play together in these new environments. But all is not well. These online communities are ruled nearly exclusively by contract law, through end-user licence agreements, terms of service, and codes of conduct. Contracts are a critical means of helping two (or a few) people negotiate their preferences. But online communities are made up of enormous and shifting populations that have no time or ability to negotiate agreements with every other community member. Relying on contracts alone thus threatens the investments and creativity that go into …

Navigating Through The Fog Of Cloud Computing Contracts, T. Noble Foster

T. Noble Foster

This paper explores legal issues associated with cloud computing, provides analysis and commentary on typical clauses found in contracts offered by well-known cloud service providers, and identifies strategies to mitigate the risk of exposure to cloud-based legal claims in the critical areas of data security, privacy, and confidentiality. While current research offers numerous case studies, viewpoints, and technical descriptions of cloud processes, our research provides a close examination of the language used in cloud contract terms. Analysis of these contract terms supports the finding that most standard cloud computing contracts are unevenly balanced in favor of the cloud service provider. …

The Cost Of Consent: Optimal Standardization In The Law Of Contract, Joshua A.T. Fairfield

Joshua A.T. Fairfield

This article argues that informed consent to contract terms is not a good to be maximized, but is rather an information cost that courts should minimize. The goal of mass-market contract law ought to be to keep costs low by encouraging contract standardization. The article applies information cost theory to show that information-forcing rules are often inefficient at both the micro- and macroeconomic levels. Such rules also impose greater costs on third parties than the benefits they create for the contracting parties. When one consumer creates an idiosyncratic deal, the information-savings benefits of standardization are reduced for all other potential …

The Search Interest In Contract, Joshua A.T. Fairfield

Joshua A.T. Fairfield

Parties often do not negotiate for contract terms. Instead, parties search for the products, terms, and contractual counterparties they desire. The traditional negotiation centered view of contract continues to lead courts to try to construe the meaning of the parties where no meaning was negotiated, and to waste time determining the benefits of bargains that were never struck. Further, while courts have ample tools to validate specifically negotiated contract terms, courts lack the tools to respond to searched-for terms. Although the law and literature have long recognized that there is a disconnect between the legal fictions of negotiation and the …

Contract Law And Modern Economic Theory, Daniel A. Farber

Daniel A Farber

No abstract provided.

Another View Of The Quagmire: Unconstitutional Conditions And Contract Theory, Daniel A. Farber

Daniel A Farber

No abstract provided.

Love And Contracts In Don Quixote, Martha Ertman

Martha M. Ertman

Viewing love as a contract seems, initially, like mistaking windmills for giants, or a peasant girl for a grand lady. This chapter seeks, like Don Quixote, to convince readers to suspend their practiced views of everyday relationships in order to see them in a new light. What seems crazy at first glance may come to look as good, and sometimes better, than the more conventional view. As a law professor, I usually write about love and contracts by focusing on legal opinions and statutes, and recently I have added real-life stories from books and newspapers, as well as my …