Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Series

Contracts

1998

Institution
Keyword
Publication

Articles 1 - 30 of 32

Full-Text Articles in Law

Replacing Strict Liability With A Contract-Based Products Liability Regime, Richard C. Ausness Jul 1998

Replacing Strict Liability With A Contract-Based Products Liability Regime, Richard C. Ausness

Law Faculty Scholarly Articles

When strict products liability first appeared on the scene some thirty-five years ago, it was heralded as a boon to consumers whose claims to compensation had hitherto been frustrated by the law of sales. Warranty law, it was said, worked fairly well in purely "commercial" transactions, but tort law did a better job in cases where ordinary consumers suffered personal injuries or property damage from defective products. To be sure, defenders of warranty law pointed out that the newly-drafted Uniform Commercial Code (the "Code" or "U.C.C.") was much more consumer friendly than the old Uniform Sales Act. Nevertheless ...


Guidelines For Granting Aquaculture Leases., Fisheries Wa, Aquaculture Development Council, Aquaculture Council Of Wa Jul 1998

Guidelines For Granting Aquaculture Leases., Fisheries Wa, Aquaculture Development Council, Aquaculture Council Of Wa

Fisheries management papers

The Western Australian Government is committed to the development of aquaculture within a framework of environmental sustainability. This discussion paper will deal with issues related to the granting of leases for aquaculture and will set out a process for the management of aquaculture leases and associated licences. It will be the basis for presaring the draft Ministerial Policy Guidelines for the granting of aquaculture leases.


An Essay On Uncertainty And Fact-Finding In Civil Litigation, With Special Reference To Contract Cases, Alex Stein Jul 1998

An Essay On Uncertainty And Fact-Finding In Civil Litigation, With Special Reference To Contract Cases, Alex Stein

Faculty Scholarship

No abstract provided.


Is There A Duty To Negotiate In Good Faith?, Michael Philip Furmston Jul 1998

Is There A Duty To Negotiate In Good Faith?, Michael Philip Furmston

Research Collection School Of Law

One of the most interesting questions concerning modern contract lawyers is whether, and if so when, there may be a duty on parties to a contract to negotiate in good faith? This may seem an odd question for an English lawyer to raise, granted the refusal of the House of Lords in Walford v. Miles [1992] 2 A.C. 128 to recognise even the effectiveness of an agreement to negotiate in good faith but this case has not escaped cogent criticism (Neill (1992) 108 L.Q.R. 405) and it rests on an axiom (that this is a duty which ...


The Best Law School Subject, Robert A. Hillman, Robert S. Summers Apr 1998

The Best Law School Subject, Robert A. Hillman, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.


Questioning The "New Consensus" On Promissory Estoppel: An Empirical And Theoretical Study, Robert A. Hillman Apr 1998

Questioning The "New Consensus" On Promissory Estoppel: An Empirical And Theoretical Study, Robert A. Hillman

Cornell Law Faculty Publications

Professor Hillman presents evidence that contradicts several assumptions about how courts apply the doctrine of promissory estoppel. Although theorists have claimed the importance, even dominance, of the theory as a ground for enforcing promises, he shows that this theory is remarkably unsuccessful in the courts. Professor Hillman also demonstrates the crucial role of reliance in both successful and unsuccessful promissory estoppel cases, despite the "new consensus" that courts enforce promises without a showing of reliance. Finally, Professor Hillman shows that courts award damages flexibly in successful promissory estoppel cases, although analysts have claimed that courts strongly favor expectancy damages.

Professor ...


The License Is The Product: Comments On The Promise Of Article 2b For Software And Information Licensing, Robert W. Gomulkiewicz Jan 1998

The License Is The Product: Comments On The Promise Of Article 2b For Software And Information Licensing, Robert W. Gomulkiewicz

Articles

Article 2B promises to draw together contract principles for software and information licensing that, at present, are spread among various bodies of law.

This Article argues that Article 2B must affirm industry standard licensing practices in order to prove beneficial. For example, Article 2B's affirmation of industry standard mass market licensing is important for both publishers and end users. Article 2B must also provide the flexibility to accommodate new distribution and licensing models that will arise as electronic commerce matures. Any other approach would fundamentally disrupt the software and information industries.

Moreover, this Article urges the drafters of Article ...


Debt Instruments' Tax Treatment In Corporate Mergers And Acquisitions, Tae Oon Jang Jan 1998

Debt Instruments' Tax Treatment In Corporate Mergers And Acquisitions, Tae Oon Jang

LLM Theses and Essays

The increase of merger and acquisition(M&A) activity since 1992 has resulted mainly from a domestic economic recovery. The current M&A trend shows that M&A is still an important means of enhancing many corporations' competitive power and of stimulating growth in such areas as computer software and services, wholesale and distribution, miscellaneous services, banking and finance, and leisure and entertainment. Fundraising for mezzanine-fund financing, which reflects investors' foresight about current and future M&A trends, has also seen rapid growth. After the Tax Reform Act of 1986 and the repeal of the General Utilities doctrine, the elimination ...


The Interpretation Of The Remedial Provisions Of The Cisg, Evelina Wilhelmina Innocentia Visser Jan 1998

The Interpretation Of The Remedial Provisions Of The Cisg, Evelina Wilhelmina Innocentia Visser

LLM Theses and Essays

The drafting process of the most successful international uniform law of the last decades, the 1980 United Nations Convention on the International Sale of Goods (CISG) reflected that in order to become a set of "well-balanced subsidiary rules," international uniform must be drafted and implemented carefully. It is essential that an international uniform law is adapted to diverse cultures. The different needs and demands of the varied socio-economic systems and legal structures, perceptions, procedures, and cultures of the distinct legal systems of this world are a main and omnipresent consideration and must be capable of absorbing the unified law. Either ...


The Past And Future Of Kentucky's Fraudulent Transfer And Preference Laws, Douglas C. Michael Jan 1998

The Past And Future Of Kentucky's Fraudulent Transfer And Preference Laws, Douglas C. Michael

Law Faculty Scholarly Articles

An important part of the law of creditors' remedies is the ability of creditors to recover property formerly held by the debtor, but transferred to others under circumstances that are considered to be unfair or inequitable. There are two principal ways a creditor can seek to have a debtor's transfer characterized as unfair in order to recover it. First, a transfer to another creditor or a third party can be fraudulent as to one or all of the remaining creditors, or may be deemed to be fraudulent because of the circumstances surrounding the transfer, such as a transfer made ...


Notice And Notification Under The Revised Uniform Partnership Act: Some Suggested Changes, J. Dennis Hynes Jan 1998

Notice And Notification Under The Revised Uniform Partnership Act: Some Suggested Changes, J. Dennis Hynes

Articles

This Article addresses the decision by the drafters of the revised Uniform Partnership Act (1996) (RUPA) to reduce the traditional defenses available to partnerships in apparent authority cases. RUPA eliminated the requirement that apparent authority claims against a partnership be based on the claimant's reasonable expectations. Under RUPA a partnership is liable for a partner's unauthorized act even when the claimant had reason to know the act was unauthorized. A defense based on the claimant's knowledge is effective only when the claimant actually knows--is cognitively aware--that the act was unauthorized. This Article argues that this places an ...


“Why Infer”? What The New Institutional Economics Has To Say About Law-Supplied Default Rules, Juliet P. Kostritsky Jan 1998

“Why Infer”? What The New Institutional Economics Has To Say About Law-Supplied Default Rules, Juliet P. Kostritsky

Faculty Publications

A central question of contract law remains: when should the law supply a term not expressly agreed to? Many scholars have addressed that question, yet the justification for law-supplied terms often remains unconvincing. Because many proposals to supply terms do not incorporate a comparative framework for assessing the costs and benefits of legal interventions, they are incompletely justified. This Article proposes that a comparative net benefit approach (developed in institutional economics to explain private arrangements) be adapted and expanded to resolve the fundamental issues of legal intervention. The Article uses that framework to critique the hypothetical bargain and Ayres/Gertner ...


Rescuing Reliance: The Perils Of Promissory Estoppel, Charles L. Knapp Jan 1998

Rescuing Reliance: The Perils Of Promissory Estoppel, Charles L. Knapp

Faculty Scholarship

No abstract provided.


Contract Interpretation In California: Plain Meaning, Parol Evidence And Use Of The "Just Result" Principle, H.G. Prince Jan 1998

Contract Interpretation In California: Plain Meaning, Parol Evidence And Use Of The "Just Result" Principle, H.G. Prince

Faculty Scholarship

No abstract provided.


Unmet Expectations: Undue Restriction Of The Reasonable Expectations Approach And The Misleading Mythology Of Judicial Role, Jeffrey W. Stempel Jan 1998

Unmet Expectations: Undue Restriction Of The Reasonable Expectations Approach And The Misleading Mythology Of Judicial Role, Jeffrey W. Stempel

Scholarly Works

A complete and open embrace of the pure version of the doctrine as enunciated in Judge Keeton's famous article--which expressly provides for finding coverage consistent with the objectively reasonable expectations of the policyholder even where those expectations are contradicted by apparently clear policy language --is viewed by much of the legal and political mainstream as too inconsistent with the prevailing American paradigm of judicial restraint, strict construction of disputed texts, and minimal government involvement in market activity. Some of this resistance to reasonable expectations is the product of an unrealistic reification of the prevailing American politico-legal philosophy of judicial ...


Privatautonomie Und Privatkodifikation – Zu Anwendbarkeit Und Geltung Allgemeiner Vertragsrechtsprinzipien, Ralf Michaels Jan 1998

Privatautonomie Und Privatkodifikation – Zu Anwendbarkeit Und Geltung Allgemeiner Vertragsrechtsprinzipien, Ralf Michaels

Faculty Scholarship

No abstract provided.


Commentary On 'The Renegotiation Of Contracts', Howard Hunter Jan 1998

Commentary On 'The Renegotiation Of Contracts', Howard Hunter

Research Collection School Of Law

Professor John Carter has identified a theme of growing importance in commercial transactions, especially as the number of those that are long in duration and that cross political or cultural lines increases. It is difficult under the best of circumstances ex ante to negotiate for all contingencies in a dynamic economy. Allowing, or requiring, post hoc renegotiations every time there is a change in circumstances could reduce substantially the utility of contract as a risk allocation device that provides some measure of privately ordered certainty unless the use of post hoc renegotiation is carefully circumscribed.


Legal-Ware: Contract And Copyright In The Digital Age, Michael J. Madison Jan 1998

Legal-Ware: Contract And Copyright In The Digital Age, Michael J. Madison

Articles

ProCD, Inc. v. Zeidenberg, which enforced a shrinkwrap license for computer software, has encouraged the expansion of the shrinkwrap form beyond computer programs, forward, onto the Internet, and backward, toward such traditional works as books and magazines. Authors and publishers are using that case to advance norms of information use that exclude, practically and conceptually, a robust public domain and a meaningful doctrine of fair use. Contesting such efforts by focusing on the contractual nature of traditional shrinkwrap, by relying on market principles, on adhesion theory, on commercial law concepts of usage and custom, or on federal preemption doctrine, feeds ...


Reconsidering Insurance For Punitive Damages, Tom Baker Jan 1998

Reconsidering Insurance For Punitive Damages, Tom Baker

Faculty Scholarship at Penn Law

No abstract provided.


Unreason In Action: A Case Study In The Wrong Approach To Construing The Liability Insurance Pollution Exclusion, Jeffrey W. Stempel Jan 1998

Unreason In Action: A Case Study In The Wrong Approach To Construing The Liability Insurance Pollution Exclusion, Jeffrey W. Stempel

Scholarly Works

For more than twenty-five years, a significant component of the scholarly commentary on insurance law has focused on the so-called “reasonable expectations doctrine” enunciated by then-Professor (now Judge) Robert Keeton in his justly celebrated 1970 article. The reasonable expectations principle made a seemingly sudden emergence with the appearance of Keeton's article and has held particular attraction to academics while simultaneously prompting resistance from elements of the bench and bar, and particularly from the insurance industry. The doctrine's life to date can be described as one of early growth followed by subsequent retreat and dilution, with continuing controversy.

However ...


Recent Case Developments, Jeffrey W. Stempel Jan 1998

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance law in the year 1998.


Are Statutes Really "Legislative Bargains"? The Failure Of The Contract Analogy In Statutory Interpretation, Mark L. Movsesian Jan 1998

Are Statutes Really "Legislative Bargains"? The Failure Of The Contract Analogy In Statutory Interpretation, Mark L. Movsesian

Faculty Publications

Recent scholarship draws an analogy between contract and statutory interpretation. In this Article, Professor Movsesian explores and rejects that analogy. There are key differences between contracts and statutes, he argues; the intentionalism of contemporary contract law is inappropriate in the context of statutory interpretation. After critically examining the literature on the topic and demonstrating the operative distinctions between contracts and statutes, Professor Movsesian provides a useful illustration in the form of the famous case of Church of the Holy Trinity v. United States. Professor Movsesian shows how a comparison of contract and statutory interpretation sheds light on a number of ...


Comparative Law In Action: Promissory Estoppel, The Civil Law, And The Mixed Jurisdiction, David Snyder Jan 1998

Comparative Law In Action: Promissory Estoppel, The Civil Law, And The Mixed Jurisdiction, David Snyder

Articles in Law Reviews & Other Academic Journals

No abstract provided.


Bloomer Girl Revisited Or How To Frame An Unmade Picture, Victor P. Goldberg Jan 1998

Bloomer Girl Revisited Or How To Frame An Unmade Picture, Victor P. Goldberg

Faculty Scholarship

Nearly all contracts casebooks feature the saga of Shirley MacLaine's suit against Twentieth Century Fox arising from the cancellation of the proposed film Bloomer Girl. None really get the story right. To be fair, none try. The case is a vehicle for exploring the obligation of the victim of the breach of an employment contract to take alternative employment. If MacLaine refused an offer of alternative employment that was not "different and inferior," her failure to mitigate would mean that the earnings she would have received would be offset against the damages; so, asked the court, was the alternative ...


In Search Of Best Efforts: Reinterpreting Bloor V. Falstaff, Victor P. Goldberg Jan 1998

In Search Of Best Efforts: Reinterpreting Bloor V. Falstaff, Victor P. Goldberg

Faculty Scholarship

Bloor v. Falstaff has become the standard casebook example of judicial interpretation of a "best efforts" clause. The court held that Falstaff's lackluster promotional efforts for Ballantine beer violated its "best efforts covenant, a result that has met with near universal approval. However, when the problem is properly framed, the decision is clearly wrong. The court's failure to consider the purpose of the transaction led it astray. Falstaff almost certainly did not breach its obligation.

The essential feature of the contract is that Ballantine was exiting the beer business and was making a one-shot sale of some of ...


Comparative Law In Action: Promissory Estoppel, The Civil Law, And The Mixed Jurisdiction, David V. Snyder Jan 1998

Comparative Law In Action: Promissory Estoppel, The Civil Law, And The Mixed Jurisdiction, David V. Snyder

Articles by Maurer Faculty

No abstract provided.


Commentary On 'Assignment Of Contractual Burdens', Howard Hunter Jan 1998

Commentary On 'Assignment Of Contractual Burdens', Howard Hunter

Research Collection School Of Law

Professor Michael Furmston begins his fine paper with the statement that ‘Contract textbooks treat it as axiomatic that contractual burdens cannot be assigned’. This commentary can begin with the equally forceful statement that contract textbooks in the United States treat as axiomatic the proposition that most contractual burdens can be freely assigned.


Separation Of Powers And The Separate Treatment Of Contract Claims Against The Federal Government For Specific Performance, Richard Henry Seamon Jan 1998

Separation Of Powers And The Separate Treatment Of Contract Claims Against The Federal Government For Specific Performance, Richard Henry Seamon

Articles

No abstract provided.


Freeing The Tortious Soul Of Express Warranty Law, James J. White Jan 1998

Freeing The Tortious Soul Of Express Warranty Law, James J. White

Articles

I suspect that most American lawyers and law students regard express warranty as neither more nor less than a term in a contract, a term that is subject to conventional contract rules on formation, interpretation, and remedy. Assume, for example, that a buyer sends a purchase order to a seller and the purchase order specifies the delivery of 300 tons of "prime Thomas cold rolled steel." The acknowledgment also describes the goods to be sold as "prime Thomas cold rolled steel." Every American lawyer would agree that there is a contract to deliver such steel and furthermore would conclude that ...


Bloomer Girl Revisited Or How To Frame An Unmade Picture, Victor P. Goldberg Jan 1998

Bloomer Girl Revisited Or How To Frame An Unmade Picture, Victor P. Goldberg

Faculty Scholarship

The standard analysis of Parker v. Twentieth Century Fox follows the court in focusing on whether the substitute employment offered Shirley MacLaine was "different and inferior" from that which she had initially contracted for. That, this paper argues, was the wrong question. The court managed to produce the right outcome, but through convoluted reasoning that failed to recognize the essential feature of the contract. The contract had a "pay-or-play" provision by which the studio, in effect, purchased an option on her time; they would pay her to be ready to make a particular film, but they made no promise to ...