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Full-Text Articles in Law

Developments In Contract Law: The 2021-2022 Term — The Enduring Allure Of Freedom Of Contract, Marcus Moore Aug 2023

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

All Faculty Publications

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 …


Misrepresentation And Contract, Gregory Klass Mar 2023

Misrepresentation And Contract, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Contract theorists naturally focus on the duty to perform. This chapter argues they should also pay attention to duties of candor in the contracting context. The most obvious example of such duties can be found in the misrepresentation defenses, which aim to ensure that contractual undertakings are sufficiently voluntary and to allocate the costs of defective consent. But other laws of deception, such as the torts of negligent misrepresentation and deceit, are also integral to the law of contracts. Separate liability in tort for both pre- and post-formation misrepresentations helps parties who mistrust one another determine whether an exchange is …


Developments In Contract Law: The 2020-2021 Term – Appeals To Fairness, Marcus Moore Aug 2022

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

All Faculty Publications

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 …


Contract Law Casebook Research Spreadsheet, Raza M. Husnain Aug 2022

Contract Law Casebook Research Spreadsheet, Raza M. Husnain

Undergraduate Student Research Internships Conference

This is a spreadsheet with case law and legal articles & commentaries that pertain to updates, interesting discussions, and critiques of Canadian contract law since 2017. This was done for the purpose of updating the Cases and Materials on Contract Law casebook used for first-year Western Law students. The focus of the research is on the Canadian context, but international sources, particularly those from commonwealth nations, are drawn from as well.


Changes To Material Adverse Effect Clauses Following Major Events: Evidence From Covid-19, Vincent Scala Jul 2022

Changes To Material Adverse Effect Clauses Following Major Events: Evidence From Covid-19, Vincent Scala

St. John's Law Review

(Excerpt)

In November 2019, LVMH Moët Hennessey Louis Vuitton, the world’s leading luxury goods company, announced plans to acquire Tiffany & Company, the prominent American jeweler. The transaction was reported to be worth more than $16 billion, which would have been the largest deal ever in the luxury goods industry. Following the announcement, LVMH’s chief executive officer stated that Tiffany would “thrive for centuries to come.” Nearly ten months later, the acquisition was in shambles as the parties squared off in a legal battle in the Delaware Court of Chancery. The companies were driven to litigation over anxieties about the …


Illusory Privacy, Thomas Haley Jan 2022

Illusory Privacy, Thomas Haley

Indiana Law Journal

For decades, regulators, consumer advocates, and privacy theorists have grappled with one of privacy’s most important questions: how to protect private information that consumers unwittingly give away with the click of an “I accept” button. Reform efforts remain mired in a morass of text, focusing on the increasing volume and complexity of firms’ terms of service and privacy policies. This Article moves beyond such existing approaches. By analyzing terms of service and privacy policies from hundreds of top websites—which this Article calls “platform terms”—this Article demonstrates that the prevailing “notice and consent” paradigm of privacy regulation cannot provide meaningful protection. …


Sexual Agreements, Susan Frelich Appleton, Albertina Antognini Jan 2022

Sexual Agreements, Susan Frelich Appleton, Albertina Antognini

Scholarship@WashULaw

Few would find it surprising that an agreement for sex falls outside the bounds of contract law. Prostitution—defined as an exchange of sex for money—has long been a crime, a point that courts often make in declining to enforce agreements between unmarried partners. In fact, courts routinely invalidate contracts when sex forms the basis of a couple’s bargain, whether married or not, and whether the sex is explicit or inferred from the relationship itself. A closer look at the legal treatment of sexual agreements, however, tells a more complicated story. Although courts reject sex as consideration for being “meretricious” or …


Contract Law Illegality Spreadsheet, Jaidyn S. Mcewen Ms Aug 2021

Contract Law Illegality Spreadsheet, Jaidyn S. Mcewen Ms

Undergraduate Student Research Internships Conference

This is an excel spreadsheet with a list of cases, secondary sources and statutes pertaining to illegality in contract law (with a focus on the Canadian context).


In Contracts We Trust (And No One Can Change Their Mind)! There Should Be No Special Treatment For Religious Arbitration, Michael J. Broyde, Alexa J. Windsor Apr 2021

In Contracts We Trust (And No One Can Change Their Mind)! There Should Be No Special Treatment For Religious Arbitration, Michael J. Broyde, Alexa J. Windsor

Pepperdine Dispute Resolution Law Journal

No abstract provided.


An Analysis Of Applications Of The Restatement (Second) Of Contracts In Connecticut And The Restatement (Second) And (Third) Of Torts In Washington: Realizing The Restatements' Objectives In Practice, Brendan W. Clark Apr 2021

An Analysis Of Applications Of The Restatement (Second) Of Contracts In Connecticut And The Restatement (Second) And (Third) Of Torts In Washington: Realizing The Restatements' Objectives In Practice, Brendan W. Clark

Senior Theses and Projects

No abstract provided.


The Market As Negotiation, Rebecca E. Hollander-Blumoff, Matthew T. Bodie Jan 2021

The Market As Negotiation, Rebecca E. Hollander-Blumoff, Matthew T. Bodie

Scholarship@WashULaw

Our economic system counts on markets to allocate most of our societal resources. The law often treats markets as discrete entities, with a native intelligence and structure that provides clear answers to questions about prices and terms. In reality, of course, markets are much messier—they are agglomerations of negotiations by individual parties. Despite theoretical and empirical work on markets and on negotiation, legal scholars have largely overlooked the connection between the two areas in considering how markets are constructed and regulated.

This Article brings together scholarship in law, economics, sociology, and psychology to better understand the role that negotiation plays …


Rethinking Mistake In The Age Of Algorithms, Vincent Ooi, Kian Peng Soh Sep 2020

Rethinking Mistake In The Age Of Algorithms, Vincent Ooi, Kian Peng Soh

Research Collection Yong Pung How School Of Law

In our previous note: Cryptocurrencies and Code before the Courts ((2019) 30(3) King’s Law Journal 331 - 337), we discussed the Singapore International Commercial Court (High Court)’s decision in B2C2 Ltd v Quoine Pte Ltd. The case subsequently went on appeal, and the Singapore International Commercial Court (Court of Appeal), by a majority, affirmed the decision of the lower court in Quoine v B2C2 (“Quoine”). The case of Quoine represents the first time an apex court in the Commonwealth has ruled on the applicability of contractual principles to situations involving automated trading software. In our recent case note: Rethinking Mistake …


Rethinking Mistake In The Age Of Algorithms: Quoine Pte Ltd V B2c2 Ltd, Vincent Ooi, Kian Peng Soh Sep 2020

Rethinking Mistake In The Age Of Algorithms: Quoine Pte Ltd V B2c2 Ltd, Vincent Ooi, Kian Peng Soh

Research Collection Yong Pung How School Of Law

Good traders remove emotion from the decision-making process. Automated trading algorithms have enabled this, allowing one to trade round the clock, and without the constant need to monitor one’s investments. But software has gremlins. Given the vast amounts of money involved in such trades, it was only a matter of time before disputes involving automated trading software came before the courts. The decision in Quoine v B2C2 (“Quoine”) represents the first time an apex court in the Commonwealth has ruled on the applicability of contractual principles to situations involving automated trading software.


Contract Law’S Transferability Bias, Paul Macmahon Apr 2020

Contract Law’S Transferability Bias, Paul Macmahon

Indiana Law Journal

When A makes a contract with B, it comes as no surprise that she is liable to B. If B can transfer her contractual rights to C, A is now liable to C. Parties in A’s position often have strong reasons to avoid being liable to suit by C. Contract law, however, seems determined to minimize and override these concerns. Under current doctrine on the assignment of contractual rights—the focus of this Article—the law often imposes its own preference for transferability on the parties. The law generally assumes that contractual rights are assignable, construes exceptions to that general rule narrowly, …


Conscience And Justice In Equity: Comments On Equity: Conscience Goes To Market, Paul B. Miller Jan 2020

Conscience And Justice In Equity: Comments On Equity: Conscience Goes To Market, Paul B. Miller

Journal Articles

This short essay introduces and engages several philosophical questions raised by Irit Samet’s Equity: Conscience Goes to Market. Amongst other things, it addresses questions going to: the proper scope of equity; the relationship between equity’s remedial and supplemental functions; whether, and if so, to what extent equity promotes compliance with moral obligations; what, if any, moral aims animate equitable intervention; and whether, and if so, how, equity is distinctively concerned with matters of conscience and “particular” justice. All the while, I express appreciation for Samet’s project while raising some doubts about her views on how law and equity divide labor …


Contracts Formed By Software: When Things Go Wrong, Vincent Ooi Nov 2019

Contracts Formed By Software: When Things Go Wrong, Vincent Ooi

Research Collection Yong Pung How School Of Law

The use of software in contract formation is likely to become increasingly pervasive in light of the digital economy. Consequently, software can also be expected to exhibit greater autonomy and take on increasingly complex transactions and contract negotiations. It is important that a legally coherent, fair, certain and economically justified approach be taken to regulate such contracts.A ‘contracting problem’ arises when software is used to autonomously enter into contracts without human input. The formation of a valid contract requires, inter alia, an agreement between two or more parties, where each party exhibits an objective intention to be legally bound (the …


Cryptocurrencies And Code Before The Courts, Vincent Ooi, Kian Peng Soh Nov 2019

Cryptocurrencies And Code Before The Courts, Vincent Ooi, Kian Peng Soh

Research Collection Yong Pung How School Of Law

In the rapidly developing cyber sphere dominated by cryptocurrencies and code, it is perhaps not uncommon for firms to focus on cutting-edge technological developments leaving the law behind as an afterthought. B2C2 Ltd v Quoine Pte Ltd (‘B2C2’)1 may serve as a timely reminder of the importance of the legal principles supporting e-commerce and Fintech. In the first case of its kind, B2C2 raised several key questions before the Singapore International Commercial Court (‘SICC’), seeking clarification on how the established legal concepts of breach of trust, mistake and unjust enrichment might apply in the context where an automated contract-forming software …


Contract Is Context, Peter A. Alces Sep 2019

Contract Is Context, Peter A. Alces

Peter A. Alces

No abstract provided.


Cryptocurrencies And Code Before The Courts, Vincent Ooi, Kian Peng Soh Sep 2019

Cryptocurrencies And Code Before The Courts, Vincent Ooi, Kian Peng Soh

Research Collection Yong Pung How School Of Law

In the rapidly developing cyber sphere of e-commerce and Fintech, dominated by cryptocurrencies and code, it is perhaps not uncommon for firms to focus on cutting-edge technological developments, leaving the law behind as an afterthought. However, the case of B2C2 Ltd v Quoine Pte Ltd (“B2C2”) may serve as a timely reminder of the importance of the legal principles supporting e-commerce and Fintech. In the first case of its kind, B2C2 raised several key questions before the Singapore International Commercial Court, seeking clarification on how the established legal concepts of breach of trust, mistake and unjust enrichment might apply in …


A Reformulated Test For Unconscionability, Vincent Ooi, Walter Yong Jun 2019

A Reformulated Test For Unconscionability, Vincent Ooi, Walter Yong

Research Collection Yong Pung How School Of Law

Apart from its interesting facts, this case, BOM v BOK [2018] SGCA 83, is significant for its rejection of a “broad” doctrine of unconscionability, the existence of which has been a matter of some debate in English law, and which has been accepted in Australia (see Commercial Bank of Australia Ltd v Amadio (1983) 151 C.L.R. 447; (1983) 46 A.L.R. 402). It also proposes a new test for the doctrine of unconscionability that is narrower than Amadio, based on the requirements inCresswell v Potter [1978] 1 W.L.R. 255. The test for unconscionability in English law has been a matter of …


Contracts Formed By Software: An Approach From The Law Of Mistake, Vincent Ooi Feb 2019

Contracts Formed By Software: An Approach From The Law Of Mistake, Vincent Ooi

Centre for AI & Data Governance

A ‘Contracting Problem’ arises when software is used to autonomously enter into contracts without human input. Questions arise as to how and whether there can be an expression of an objective intention to be legally bound. This article considers three leading solutions to the Contracting Problem. The ‘Mere Tools Theory’, which views software as ‘mere tools’ of communication, is too harsh as it binds users to any software malfunction. The Agency Approach, which treats software as Electronic Agents, capable of contracting on behalf of their users, is untenable as it ascribes unrealistic characteristics to software. The article submits that the …


Penalty Or Damages? Are There Limits To Liquidated Damages Provisions In Teacher Employment Contracts Jan 2019

Penalty Or Damages? Are There Limits To Liquidated Damages Provisions In Teacher Employment Contracts

Florida A & M University Law Review

This Article examines the validity of liquated damages provisions with regard to teacher contracts and the appropriateness of their use. Part II addresses the law of liquidated damages generally. Part III discusses one Georgia case brought by two teachers against DCSD for enforcement of its liquidated damages provision as an attempt to force the teachers to stay with the District. Part IV summarizes a review of various teacher employment contracts and types of liquidated damages clauses incorporated therein. Part IV concludes with a discussion of various issues that school districts ought to take into consideration to enhance teacher retention and …


The Good, The Bad, And The Ugly Of Online Reviews: The Trouble With Trolls And A Role For Contract Law After The Consumer Review Fairness Act, Wayne R. Barnes Jan 2019

The Good, The Bad, And The Ugly Of Online Reviews: The Trouble With Trolls And A Role For Contract Law After The Consumer Review Fairness Act, Wayne R. Barnes

Georgia Law Review

The advent of the internet has brought innumerable
innovations to our lives. Among the innovations is the
meteoric rise in the volume of e-commerce conducted on
the internet. Correspondingly, consumer-posted
information about merchants, goods, and services has
also become a rich source of information for consumers
researching a purchase online. This information takes
many forms, but a major category is the narrative review
describing the purchase and experience. Such reviews
are posted on websites such as Yelp, Amazon, and
TripAdvisor, on apps, and on social media such as
Facebook and Twitter. The amount and volume of
reviews has exploded in …


Curb Your Enthusiasm: The Real Implications Of Blockchain In The Legal Industry, Justin Evans Dec 2018

Curb Your Enthusiasm: The Real Implications Of Blockchain In The Legal Industry, Justin Evans

The Journal of Business, Entrepreneurship & the Law

No abstract provided.


הורות משפטית מן הדין ומן הצדק - Legal Parenthood - Law And Justice, Yehezkel Margalit Aug 2018

הורות משפטית מן הדין ומן הצדק - Legal Parenthood - Law And Justice, Yehezkel Margalit

Hezi Margalit

מן המפורסמות שאינן צריכות לראיה היא הקביעה שלפיה הכרה בהורות משפטית בישראל של פרט מסוים אפשרית אך ורק מכוח זיקה ביולוגית, גנטית או פיזיולוגית; מכוח צו אימוץ או לחלופין מכוח קבלת צו הורות בסיומו של הליך לנשיאת עוברים. אולם זעיר פה זעיר שם, הלכה למעשה, מתקבלות החלטות שיפוטיות שאינן עולות בקנה אחד עם תפיסת עולם קוהרנטית ומקיפה לכאורה זו, הסודקות עוד ועוד תובנה זו. ללא כל ספק, דרך המלך בקעקועה של הנחת העבודה המקובלת היא השימוש ההולך וגובר בצו הורות פסיקתי. בהליך בתולי זה במשפט הישראלי החלו בתי המשפט לענייני משפחה להשתמש במחצית הראשונה של שנת 2012 בהקניית אימהות משפטית …


Licenses And The Property/Contract Interface, Christina M. Mulligan Jan 2018

Licenses And The Property/Contract Interface, Christina M. Mulligan

Indiana Law Journal

INTRODUCTION

I. THE ROLE OF FORMAL CATEGORIES

II. THE COMPOUND-PAUCITAL LICENSE

A. IDIOSYNCRASY AND INFORMATION ASYMMETRIES

B. REGULATING LICENSES

1. THE NOTICE STRATEGY

2. THE PROTECTION STRATEGY

III. RESTRAINTS ON ALIENATION AND USE

A. HARMS CAUSED BY RESTRAINTS ON ALIENATION AND USE

1. INCREASED INFORMATION COSTS

2.WASTE

B. LIMITING HARM WITH PROTECTIVE STANDARDIZATION

1. THE LICENSE V. SALE DISTINCTION IN PRACTICE

2.WHAT IS A DIGITAL SALE?

3. FAVORING SALES WITHOUT LOSING FLEXIBILITY

C. DISTINGUISHING BETWEEN IN REM AND IN PERSONAM LICENSE TERMS

IV. LICENSE REVOCATION

A. TIMING REVOCATION

B. BENEFITS AND CONCERNS

1.MANAGING SHARED RESOURCES VS. UPSET RELIANCE INTERESTS

2. …


Reflections On Liability Of Air Carriers For Delay, Vernon Nase Dec 2017

Reflections On Liability Of Air Carriers For Delay, Vernon Nase

The University of Notre Dame Australia Law Review

This paper provides an analysis of both international and Australian law on the liability of air carriers and compensation for delay. It discusses the need for States to develop standard regulatory responses to delay in international carriage. It uses the EC Regulation and the New Zealand legislation as models for developing clearer legal principles and ensuring appropriate compensation for passengers affected by delay. It concludes that domestic regulation and guidance regarding delay and overbooking of flights is required to ensure appropriate liability of air carriers and clarity for passengers.


Do We Need A Global Commercial Code?, Michael Joachim Bonell Oct 2017

Do We Need A Global Commercial Code?, Michael Joachim Bonell

Dickinson Law Review (2017-Present)

The International Institute for the Unification of Private Law (UNIDROIT) first launched the idea of preparing a code of inter- national trade law. In 1970, the Secretariat of UNIDROIT submitted a note to the newly established United Nations Commission on International Trade Law (UNCITRAL) in justification of such an initiative and indicated some of the salient features of the project. What was proposed was a veritable code in the continental sense. The proposed code included two parts: part one dealing with the law of obligations generally, and part two relating to specific kinds of commercial transactions. However, the “Progressive codification …


Contracts, Causation, And Clarity, Daniel P. O'Gorman Jan 2017

Contracts, Causation, And Clarity, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.


The Black Hole Problem In Commercial Boilerplate, Stephen J. Choi, G. Mitu Gulati, Robert E. Scott Jan 2017

The Black Hole Problem In Commercial Boilerplate, Stephen J. Choi, G. Mitu Gulati, Robert E. Scott

Faculty Scholarship

Rote use of a standard form contract term can erode its meaning, a phenomenon made worse when the process of encrustation introduces various formulations of the term. The foregoing process, when it occurs, weakens the communicative properties of boilerplate terms, leading some terms to lose much, if not all, meaning. In theory, if a clause is completely emptied of meaning through this process it can create a contractual “black hole.” The more frequent and thus potentially more pervasive problem arises when, as the term loses meaning, random variations in language appear and persist, resulting in what we term a “grey …