Law Commons^™

When Is It Fair To Break Promises? Illuminating Promissory Estoppel's Inequity Requirement, Marcus Moore

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Promissory estoppel is an important adjunct to contract law, allowing non-contractual promises to be legally binding under prescribed conditions. These conditions include reliance by the promisee, as the doctrine serves to protect reasonable reliance induced by certain types of promises. Typically, the conditions also include a requirement that it would be inequitable for the promisor to go back on the promise. This inequity requirement reflects the nature of promissory estoppel as a creature of the law of equity. Beyond this, however, considerable uncertainty surrounds the inequity element. For example, there are diverging views as to whether it embodies a distinct …

Developments In Contract Law: The 2021-2022 Term — The Enduring Allure Of Freedom Of Contract, Marcus Moore

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A review of recent developments in Contract Law reveals that Freedom of Contract continues to thrive in the jurisprudence a half-century after its supposed fall. As the analysis here shows, it is a theme which animates not only general thinking about contracts, but also court resolution of specific cases and issues. High-level considerations drive the reasoning, colouring the application of more detailed rules where these exist. And among these high-level considerations, Freedom of Contract enjoys privileged status as the default law, against which opposing considerations in practice must justify themselves as exceptions. Other considerations vary in their power to constrain …

The Flaws Of Magic Bullet Theory: Retraining Unconscionability To Discretely Target Different Contexts Of Unfairness In Contracts, Marcus Moore

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Unconscionability has long been a troublesome area in Canadian jurisprudence. This is of significant concern given unconscionability’s pre-eminence as a protection of contractual fairness. This article elaborates a much-needed reorganization and rationalization of unconscionability in Canada. Under current law, a single doctrine hopelessly targets two divergent purposes. I set out here a proposed redevelopment rather of separate common law doctrines, each fit-for-purpose: (1) An English-style unconscionable bargains doctrine for avoiding bargains that exploited disability, and (2) an American-style unconscionable clauses doctrine to control unfair terms in standard form contracts. Extensive Canadian precedent supports this solution, assuring its feasibility and legitimacy. …

Developments In Contract Law: The 2020-2021 Term – Appeals To Fairness, Marcus Moore

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This article analyzes important developments in Contract Law stemming from consideration by the Supreme Court of Canada in 2020-2021. Due to the large number of Contracts cases during this period, the article focuses on prominent appeals occupied with issues of fairness in Canadian Contract Law. Fairness in contracts emerges as an important concern of the SCC at this juncture. This appropriately reflects the constellation of some long-unsolved problems (e.g., control of unfair terms in standard form contracts), confusion around key concepts associated with protection of contractual fairness (e.g., unconscionability and good faith), and judicial disagreement over the merits of general …

Demystifying Implied Terms, Marcus Moore

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Recent years have witnessed significant interest in demystifying the implication of contract terms. Whilst the discussion thus far has elicited some answers, the subject remains notoriously ‘elusive'. This article advances discussion in the field. It argues that underlying recent debates are deeper issues that must be brought to the surface. These include theoretical incoherence regarding the nature/purpose of implication tracing back to The Moorcock (1889), and analytical indeterminacy in applying the established ‘tests' for implication, as courts vary between conflicting instrumental and non-instrumental approaches. Feeding both issues is inconsistent linguistic use of core terminology. This article helps demystify implication by …

The Doctrine Of Contractual Absolution, Marcus Moore

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The absence of a knowledge requirement is a novel and astonishing feature of unconscionability in Canada, and one that calls for scholarly reflection. In other jurisdictions and formerly in Canada, unconscionability required that the benefiting party knew or at least should have known that its counterpart was impaired in the making of the contract. Such knowledge established a minimum level of wrongdoing, so that even without more active exploitation, it was unconscionable as an “unconscientious abuse of power.” But following the Supreme Court decision in Uber Technologies Inc. v. Heller (2020), Canadian contract law rejects this conventional approach. It does …

Controlling Fairness In Standard Form Contracts: What Can Courts Do, And What Should They Do?, Marcus Moore

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Unfair terms in standard form contracts are one of Contract Law's most notorious and enduring problems. The vast transnational literature on this, now a century old, has long worked out its contours, even as it still searches for more effective solutions. The central problem can be simply stated: A form drafter's ability to dictate terms-characteristically unknown and unbargained by the parties who are form recipients-allows, in the absence of any other legal control, for the incorporation of one-sided terms favouring the drafting party. The implications are significant: The exhaustive list of terms typical of such contracts, combined with the pervasiveness …

Bringing Rule Of Law And Fairness To The Dysfunctional World Of Sovereign Debt: A Role For Canada?, Maziar Peihani, Mark Jewett Qc

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Restructuring sovereign debt has long proved challenging: There is no formal regime for sovereign insolvencies similar to those that that govern domestic bankruptcy and insolvency and attempts to create one by international treaty have been met with political resistance. Currently, sovereign debt restructuring is governed by the debt contracts themselves along with the background law in the jurisdiction in which the debt is issued. Sovereign immunity also protects most state assets from seizure. These ad hoc restructuring processes are plagued by unpredictability, however, and there are incentives for individual creditors to “hold out,” demanding full repayment of their claims and …

Say On Purpose: Lessons From Chinese Corporate Charters, Li-Wen Lin

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No abstract provided.

Why Does Lord Denning's Lead Balloon Intrigue Us Still? The Prospects Of Finding A Unifying Principle For Duress, Undue Influence And Unconscionability, Marcus Moore

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To this day, Lord Denning’s opinion in Lloyds Bank v Bundy remains a staple of first-year Contracts courses in law faculties across the common law world. After surveying doctrines such as duress, undue influence, and unconscionable bargains, Denning posited that they were instances of an underlying principle permitting avoidance of a contract for “inequality of bargaining power”. Although rejected by the House of Lords, Denning’s proposition has intrigued Contract scholars for more than four decades. Subsequent attempts to “fix” Denning’s thesis have fallen short. Yet, authors of Contract textbooks persist in asking whether the doctrines might yet be unified in …

Enforcing A Holding Deposit Agreement, Samuel Beswick

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Prospective tenants in England are often asked to put down a holding deposit as a condition of signing a tenancy agreement. A holding deposit is an up-front payment given to the landlord or the landlord’s agent to place a “hold” on the property from being rented to anyone else while the applicant’s references are checked. It is paid after the key terms of the tenancy (for example, the rent amount and move-in date) have been agreed. Its purpose is to give both parties peace-of-mind that the applicant is “locked in” to renting the property.

In a previous contribution to the …

Transnational Carbon Contracting: Why Law’S Invisibility Matters, Natasha Affolder

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Contract lawyers are well aware that it is in the boilerplate, in the creation of contractual norms, forms and defaults, that power gets divided and that winners and losers are made. This analysis applies to contractual governance just as it applies to the individual contract setting. This chapter draws on the example of forest carbon contracts to illustrate the 'behind the scenes' privileging of contractual forms, norms, and defaults in action. It argues that the reductionist vision of law emerging in the literature and practice of carbon contracting is both misleading and impoverished.

The Puzzle Of Family Law Pluralism, Erez Aloni

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Family law is succumbing to pluralism. Scholars have celebrated this trend as a desirable outcome of the struggle for marriage equality. And a pluralistic family law seems to offer distinct benefits: more regimes than just marriage, and greater room for choice within each regime (manifest by more types of legally enforceable intrafamilial contracts). This Article exposes counterintuitive facts that lead to a surprising conclusion: the legal changes that scholars tout as increasing pluralism eviscerate the substance of the choices families are permitted to make.

The policies that appear to extend choice within each regime, in fact, mask what I call …

Holding Deposit Agreements: Pre-Tenancy Obligations And Rights, Samuel Beswick

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There is confusion in the rental market over the legal significance of holding deposits, which are routinely paid by prospective tenants prior to signing a lease document. The purpose of this article is to clarify the legal position of holding deposit agreements (HDAs) entered into in the pre-tenancy period. In particular, to emphasise that, in the usual course:

• The agreement to, and payment of, a holding deposit creates a binding contract between the prospective tenant and the landlord. • A HDA is a conditional contract, which grants the applicant both the right and obligation to enter into the proposed …

The Architecture Of Transnational Private Regulation, Fabrizio Cafaggi

Transnational Business Governance Interactions Working Papers

Conflicting interests among private actors constitute an important factor to explain why and how transnational private regulation has grown and the proliferation of standards and standard setting organizations that has followed. This essay provides a map of transnational regulatory space suggesting that the different levels are related to various governance responses to conflicts within the private sphere and between private and public actors.Three levels of the global regulatory space are considered: (1) the single global regulatory body, where interests are integrated into one organization, (2) the regime, in which multiple organizations operate, regulating within the same policy field, (3) multiple …

Transnational Conservation Contracts, Natasha Affolder

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Transnational environmental law is the subject of growing scholarly interest. Yet, much work remains to be done to fill in both the conceptual and empirical contours of this field. One methodological challenge that transnational law poses is the need to look beyond traditional sources of international and national law. This article contributes to efforts to understand transnational law's multilayered architecture by drawing attention to the use of transnational contracts as a mechanism to protect habitats and species. The diverse and proliferating examples of conservation contracts discussed in this article – which include forest carbon agreements, conservation concessions, debt-for-nature swaps, conservation …

Rethinking Environmental Contracting, Natasha Affolder

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Environmental contracts occupy an ill-defined middle ground between command and control regulation and voluntary initiatives. These agreements have captured the imagination of policymakers and scholars in the U.S. and Europe in particular. They are heralded as promising examples of “new governance.” This Article explores a little known example of environmental contracting which emerged in the context of a Canadian diamond mine — the Ekati Environmental Agreement. Through a fine-grained case study of the Ekati Agreement, this article challenges some of the assumptions that shape the “environmental contracting literature as well as the wider literature on “new governance.” By debunking the …

Anatomy Of An Experiment: Consolidation Of Eu Contract Law, Ljiljana Biuković

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This article analyzes the process of harmonization of Contract Law in the European Union (EU) in the context of the general debate on the need for international harmonization of commercial law on one hand, and, on the other hand, in the context of the integration of the European market and the omnipresent European discussions on the need for harmonization, appropriate methodologies for reform and on the institutional competence to pursue the harmonization process. Part II of the article establishes interrelationships between major international harmonization efforts in the area of contract law. Part III focuses on the current situation in the …

Tort, Contract And The Allocation Of Risk, Joost Blom

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Tort and contract, although both descended from a common ancestor in the forms of action at common law, are generally regarded as distinct species of civil liability. A tort is an act or omission that is marked by fault - either intention or negligence. There are also a few strict liability torts - where fault is not required - but they are rare. The damage for which tort provides a remedy is usually physical - either personal injury or property damages - albeit with consequential financial losses included. Pure economic loss remains an exception. Contract is not fault-based. Liability rests …

Judicial Law Reform In The Law Of Contract, Joost Blom

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For all its stability the law of contract has seen a good deal of reform, most of it judge-made, in the last quarter century or so. In this 1988 paper the author tries to sketch at least some of the main features of this judicial law reform in the law of contracts, to suggest the areas where this reform has been a success and where it has been less so, and, at the end, to ask what this overall picture tells us about the process of judicial law reform in the common law. This paper will touch on a number …