Law Commons^™

Survey Of The Law Of Cyberspace: Introduction, Juliet Moringiello

Juliet M Moringiello

No abstract provided.

Cooperation Before Contract: The Law And Policy Of Expenses Incurred During Negotiations In Comparative Perspective, Luigi Russi

Luigi Russi

Pending negotiations for a contract, one party may begin to incur expenses in fulfilment of the proposed economic operation in anticipation of the finalisation of a formal contract, which is a common practice in many settings, from building and lease contracts to contracts for services in general. This book, therefore, focuses on controversies that may arise when an expected contract collapses after one party withdraws from negotiations, with an ensuing attempt to determine what liability, if any, the withdrawing party should face regarding expenses incurred by the other. The laws of England and Italy, along with several non-legislative codifications – …

Electronic Contracting Cases 2008-2009, Juliet M. Moringiello, William L. Reynolds

William L. Reynolds

No abstract provided.

Electronic Contracting Cases 2008-2009, Juliet M. Moringiello, William L. Reynolds

Juliet M. Moringiello

No abstract provided.

Electronic Contracting Cases 2008-2009, Juliet M. Moringiello, William L. Reynolds

William L. Reynolds

No abstract provided.

What Is A Contract?, Sidney W. Delong

Sidney W DeLong

ABSTRACT: A contract is generally understood to be a legal duty that is deliberately created by the obligor and the obligee. But that description misses many legal relationships that are similarly created and are essential to the institution of private ordering. Hohfeld referred to these non-duty relations as privileges, powers, and immunities. In ruling on their formation and legal effect, courts often mislabel these other relationships as “contracts” in order to apply borrowed contract doctrines, such as consideration. Courts fail, however, to rationalize the application of borrowed rules to such different relationships. This article proposes that the fiction be dropped …

Consumer Assent To Standard Form Contracts And The Voting Analogy, Wayne R. Barnes

Wayne R. Barnes

Issues Of Indemnity In Issuing Performance Bond:, Aziz Abdul Hussin

Aziz Abdul Hussin

The exixtence of peformance bond in the construction contact is a must. But, before issuing the said bond, the issuing party (the bank or insurance company) need to be indemnified. There are several issues on this type of indemnity that needs to be highlighted, clarified and resolved. This article discusses the said matters in Malaysian legal perspective and practises.

Paying To Break Up: The Metamorphosis Of Reverse Termination Fees, Afra Afsharipour

Afra Afsharipour

Despite our giving lip service to the binding nature of contracts, every law student learns that there are numerous possible “outs” or “walk away rights” associated with any contract. This Article examines one particular walk away right – the reverse termination fee (RTF) – in one particular category of acquisition transactions – strategic transactions.

In sophisticated acquisitions involving public companies, the risk that one party may walk away from the transaction is particularly high because there is generally an interim period between the signing of the agreement and the completion of the acquisition. Accordingly, acquisition agreements are peppered with various …

Reforming The Law Of Adhesion Contracts: A Judicial Response To The Subprime Mortgage Crisis, Shelley Smith

Shelley Smith

This Article examines the role of standardized contracts of adhesion, in the form of mortgages, installment sale agreements and other contracts for debt that cannot be repaid, in causing the subprime mortgage crisis and the Great Depression. Evidence from the Great Depression, the Savings and Loan Crisis of the 1980s, and the subprime mortgage crisis is canvassed to demonstrate the futility of the government’s continued reliance on regulation alone to prevent the recurrence of these disasters, and to show that a reformulation of the law of adhesion contracts is needed. The Article contends that the courts’ continued adherence to the …

Survey Of The Law Of Cyberspace: Electronic Contracting Cases 2006-2007, Juliet Moringiello, William Reynolds

William L. Reynolds

In this annual survey, we discuss the electronic contracting cases decided between July 1, 2006 and June 30, 2007. In the article, we discuss issues involving contract formation, procedural unconscionability, the scope of UETA and E-SIGN, and contracts formed by automated agents. We conclude that whatever doctrinal doubt judges and scholars may once have had about applying standard contract law to electronic transactions, those doubts have now been largely resolved, and that the decisions involving electronic contracts are following the general law of contracts pretty closely.

Survey Of The Law Of Cyberspace: Electronic Contracting Cases 2005-2006, Juliet M. Moringiello, William L. Reynolds

William L. Reynolds

This article analyzes the judicial decisions involving Internet and other electronic contracts during the period from July 1, 2005 to June 30, 2006. The authors explain that this year's cases show a maturation of the common law of electronic contracts in that the judges are beginning to recognize the realities of electronic communications and to apply traditional contract principles to those communications unless the realities of the technology justifies a different result.

Behavioral Economic Issues In American And Islamic Marriage & Divorce Law, Ryan M. Riegg

Ryan M. Riegg

Opportunism, Uncertainty, And Relational Contracting - Antitrust Rules In The Film Industry, Ryan M. Riegg

Ryan M. Riegg

Are Insurance Policies Still Contracts, David F. Tavella

David F. Tavella

This article examines whether courts still treat insurance policies as contracts. Since the inception of insurance, policies have been deemed contracts, and general principles of contract interpretation have been used to interpret policies. However, more and more courts are abandoning contract principles when interpreting insurance policies, particularly using parol evidence to determine whether a policy provision is ambiguous, or even using parol evidence to interpret the meaning of unambiguous policy terms. My conclusion is that insurance policies, while still generally considered “contracts,” are treated differently then other contracts, and in reality are not seen as true contracts.

Substance Or Mere Technique? A Precis On Good Faith Performance In England, France And Germany, Luigi Russi

Luigi Russi

This paper attempts to offer a concise discussion of good faith performance and other functionally equivalent doctrines in the laws of England, Germany and France. The study’s goal is that of appraising the consistency of existing differences. More specifically, of whether they relate merely to technique - not being paralleled by diverging final outcomes - or whether the rift is deeper and goes to the very substance of the approach to the solution of similar practical problems. For this purpose, the work first shows the close connection between good faith performance (of contractual obligations) and good faith enforcement (of contractual …

Policing Limited Liability Companies Under Contract Law, Larry Dimatteo

Larry A DiMatteo

In 2004, Delaware amended its limited liability company law (Delaware Act) to allow for the contractual elimination of fiduciary duties. The statute seeks to emphasize the contract basis of limited liability companies (LLCs). It does this by providing the legal support for the incorporation of clauses that eliminate the traditional duties of care and loyalty (elimination clauses) found in corporate, agency, and trust law. The only immutable principle enunciated by the Delaware Act is the covenant of good faith. The primary focus of this paper will be on the ability of contract law to police the management and operation of …

The Scale Of Consent, Tom Bell

Tom W. Bell

We often speak of consent in binary terms, boiling it down to "yes" or "no." In practice, however, consent varies by degrees. We tend to afford expressly consensual transactions more respect than transactions backed by only implied consent, for instance, which we in turn regard as more meaningful than transactions justified by merely hypothetical consent. A mirror of that ordinal ranking appears in our judgments about unconsensual transactions. This working paper reviews how legal and other authorities regard consent, revealing that they treat consent as a matter of degree and a measure of justification. The scale described here plays a …

The Discourse Of "Contract" And The Law Of Marriage, Thomas W. Joo

Thomas W Joo

Marriage is often compared to a "contract." While this analogy bases the law of marriage on a presumed settled concept called "contract," it rests in fact on a contested view of "contract": that legitimate obligation must derive from consent. This focus on consent ignores another, contradictory, strand of contract law that imposes obligations without consent. The pervasiveness of the consent-centered "contract" analogy affects our understanding of "contract" as much as it affects our understanding of marriage.

Disputing Boilerplate, W. Mark C. Weidemaier

W. Mark C. Weidemaier

Electronic Contracting Cases 2008-2009, Juliet M. Moringiello, William L. Reynolds

William L. Reynolds

In this survey, we review electronic contracting cases decided between June 15, 2008 and June 15, 2009. During that period we found that there was not much action on the formation by click-wrap and browse-wrap front. We have previously observed that the law of electronic contracts has matured, and the fact that there have not been any decisions on whether click-wrap and browse-wrap are effective ways of forming contracts reflects that observation. This year brought us three modification cases, two cases in which a party alleged that it was not bound to the offered terms because an unauthorized party agreed …

A New Approach To The Identification And Enforcement Of Open Quantity Contracts: Reforming The Law Of Exclusivity And Good Faith, Shelley Smith

Shelley Smith

This article identifies three areas for reform in the area of open quantity contracts. First, there is a conflict among the courts over whether the exclusivity rule, variations on the exclusivity rule, or the duty of good faith are required to satisfy the mutuality and definiteness doctrines for enforcing open quantity term contracts. I propose a new validation rule to resolve this conflict. Second, courts are utilizing flawed interpretive methods to conclude that that business documents such as master purchase agreements, volume discount offers, blanket purchase orders and buyer's options are binding requirements contracts. The article offers a principled basis …

Revisiting The Battle Of The Forms: A Case Study Approach To Legal Strategy Development, Mary J. Shariff, Kevin Marechal De Charteret

Mary J. Shariff

The area of contract law described as the battle of the forms is a perfect example of an area of law where the legal rules and their application are complex, contradictory, and/or inconsistently applied. Indeed, the battle of the forms problem has been recognized as among the most “difficult problems for contract doctrine to resolve” and in some jurisdictions, has been described as “chaos” thus increasing opportunities for the strategic manipulation of the law. The classic battle of the forms typically arises when a buyer and seller exchange conflicting standard forms and commence performance of the contract. The parties appear …

The Attributes Of Transactions And The Limits Of The New Formalism, Adam B. Badawi

Adam B. Badawi

Ucc Breach Of Warranty And Contract Claims: Clarifying The Distinction, Timothy Davis

Timothy Davis

This article examines the existing legal framework that governs UCC Article 2 breach of warranty and breach of contract claims. After enumerating the circumstances that give rise to a buyer’s breach of contract in contrast to a breach of warranty claim, the Article examines cases that illustrate the practical and theoretical significance attached to understanding that breach of warranty and breach of contract constitute distinct causes of action. The Article then argues that although courts acknowledge the distinct nature of these two claims, judicial understanding of the distinction is often superficial. Focusing on Code provisions that govern disclaimers of implied …