Law Commons^™

But We Didn’T Agree To That!: Why Class Proceedings Should Not Be Implied From Silent Or Ambiguous Arbitration Clauses After Lamps Plus, Inc. V. Varela, Andrea Demelo Laprade

Catholic University Law Review

The application of class arbitrability when a contract is silent on the matter remains a mystery. The Supreme Court has not clarified its stance on class arbitrability and preemptive effects of the Federal Arbitration Act on state law when applied to determine if class arbitrability is available. The purpose of this Paper is to address how the Lamps Plus v. Varela decision created more confusion about the question of class arbitrability. It argues that the failure to address the particulars of the availability of class arbitration will perpetuate litigation on this issue. This Paper suggests that the FAA’s purpose ...

Leases As Forms, David A. Hoffman, Anton Strezhnev

Faculty Scholarship at Penn Law

We offer the first large scale descriptive study of residential leases, based on a dataset of ~170,000 residential leases filed in support of over ~200,000 Philadelphia eviction proceedings from 2005 through 2019. These leases are highly likely to contain unenforceable terms, and their pro-landlord tilt has increased sharply over time. Matching leases with individual tenant characteristics, we show that unlawful terms are surprisingly likely to be associated with more expensive leaseholds in richer, whiter parts of the city. This result is linked to landlords' growing adoption of shared forms, originally created by non-profit landlord associations, and more recently ...

Alex Lyon & Son, Sales Managers & Auctioneers V. Leach: Auction Contracts, Bidder Qualifications, Offer And Acceptance, Waiver, And The Fallacy Of Treating All Bidders The Same, George A. Michak

West Virginia Law Review Online

In Alex Lyon & Son, Sales Managers & Auctioneers v. Leach, 844 S.E.2d 120 (W. Va. 2020), the Supreme Court of Appeals of West Virginia grappled with the contractual relationships among participants in an auction transaction and rendered an opinion that (i) misstates and misaligns the rights and obligations among auctioneers, sellers, bidders, and buyers, (ii) impedes the ability of an auctioneer to reasonably control the conduct of an auction, and (iii) threatens to artificially circumscribe the prerogative of sellers and auctioneers to assume greater risks relative to certain bidders in an effort to expand the bidder pool in the ...

Cruise Contracts, Public Policy, And Foreign Forum Selection Clauses, John F. Coyle

University of Miami Law Review

A cruise ship contract is the prototypical contract of adhesion. The passenger is presented with the contract on a take-it-or-leave-it basis. If she refuses to sign, the ship sails without her. To ensure that cruise companies do not draft one-sided contracts that are unfair to passengers, Congress has enacted a number of statutes that regulate these agreements. One such statute is 46 U.S.C. § 30509. This law stipulates that any contract provision that limits the liability of the cruise company for personal injury or death is void as against public policy if the ship stops at a U.S ...

Enforcing Outbound Forum Selection Clauses In State Court, John Coyle, Katherine Robinson

Indiana Law Journal

Forum selection clauses are a staple of modern business law. Parties agree, ex ante, on where they can sue one another and then rely on the courts to enforce these agreements. Although the number of contracts containing forum selection clauses has skyrocketed in recent years, there is a dearth of empirical information about enforcement practice at the state level. Are there any states that refuse to enforce them? How frequently are they enforced? Under what circumstances, if any, will these clauses be deemed unenforceable? The existing literature provides few answers to these questions.

This Article aims to fill that gap ...

Cartoon Contracts And The Proactive Visualization Of Law, Michael D. Murray

University of Massachusetts Law Review

Contracts have always relied on text first, foremost, and usually exclusively. Yet, this approach leaves many users of contracts in the dark as to the actual meaning of the transactional documents and instruments they enter into. The average contract routinely uses language that only lawyers, law-trained readers, and highly literate persons can truly understand. There is a movement in the law in the United States and many other nations called the visualization of law movement that attempts to bridge these gaps in contractual communication by using highly visual instruments. In appropriate circumstances, even cartoons and comic book forms of sequential ...

Independent Craft Breweries Struggle Under Distribution Laws That Create A Power Imbalance In Favor Of Wholesalers, Daniel Croxall

William & Mary Business Law Review

Independent craft breweries are facing historic challenges under the COVID-19 pandemic. To make matters worse, many states prohibit a brewery from terminating a distribution contract with a wholesaler absent statutorily defined “good cause,” which typically means fraud, bankruptcy, or other illegal conduct. In this context, lagging sales or poor distribution performance are not grounds for a brewery to terminate a distribution contract. This means that it is nearly impossible, legally or financially, for an independent craft brewery to terminate a distribution contract with an unsatisfactory wholesaler. In essence, states have statutorily tipped the balance of power in favor of distributors ...

Legal System For Settlement Of Financial Equipment In Administration Contracts Under Algerian Ublie Bargains Law Of 1991, Revised- النظام القانوني لدفع المقابل المالي في العقد الإداري

Journal Sharia and Law

The researcher extensively details in Chapter I the right to receive financial equivalent in administrative contracts pointing to its origin and legal nature. In Chapter II he talks about the Admin. liability to comply with due dates, the possibility of activating its contractual obligations, demonstrating the Algerian 1991 public transactions law stipulations in comparison with French & Egyptian laws, indicating similarities & contradictions.

The researcher ended his research with his conclusion. & comments on the above - mentioned law.

Silence: Its Legal Effect On Concluding Contracts A Comparative Study

Journal Sharia and Law

Is based on mutual & verbal

Concluding a contract agreement/acceptance; however a contract can be concluded with several other ways. Silence does not necessarily express a specific view unless it is surrounded by certain conditions that may indicate that it expresses agreement/acceptance. There are some exceptions to the issue of silence when concluding a contract that silence would not necessarily mean agreement/acceptance. The essence of any legal behavior is free will which should be expressed clearly. All these exceptions are common and occur due to certain conditions which lead to silence.

The present study exemplifies some of the legislations; for instance, the German legislation ...

A Critical Study Of The Two Standard References Of Obligations (Personal Rights (And Contracts In United Arab Emirates Law Of Civil Transactions, Dr.Adnan Sarhan

Journal Sharia and Law

The Emirates Law of Civil Transactions is based on the rules set by Islamic Law. However; it suffers from faults or short comings in the legal texts and even, sometimes, a contradiction in the merits or judgement. These faults are consequences of the presence of statements extracted from defective or imperfect laws such as the Jordanian law, or a contradiction due to differences between Malek’s or Hanbal’s and Al-Numan’s shools.

In this research, the author deals with the text of the United Arab Emirates Law of Civil Transactions that are related to commitments and contracts. As he ...

Methods Of Rectifying Invalid Contracts, Ibrahim Al Shall

Journal Sharia and Law

The Jurists have given the contracts a special interest regarding division, order & calssification, in order to be easily understood. A contract can be classified as true or untrue according to the majority of jurists. According to AlHanafiya jurists, however, it is classified as true, bad and invalid.

One issue has not been highlighted or researched in depth. It is the subject of whether the contract is considered invalidated if it is doubted, disputed on the grounds of its authenticity or its signature. This research.

The Concept Of “Return” In Contracts

Journal Sharia and Law

In the common law ofEnglandandUnited States, agreement is enforceable if it is shown that it is made for valuable “return”: that is a profit provided by a party seeking enforcement of the agreement. Thus, the presence of a profit is a precondition for the validity of all contracts unless they are under seal. Profits can be looked at as a price paid by the other party. It takes the form of some rights, profits or benefits accruing to the one party or some detriment or loss suffered by the other.

In Civil law system, a lawful cause is a precondition ...

Jurisprudential Adaptation Of The Financial Relations With Joint Insurance Companies A Jurisprudential Practical Contemporary Study

Journal Sharia and Law

The joint insurance system enforced in contemporary joint insurance companies is based on a set of contracts and complex relations to which modes and targets are integrated in total conformity with the provisions and principles of the Islamic jurisprudence. The following study came as a demonstration of the technical analysis and the jurisprudential adaptation of the main financial relations occurring within the joint insurance companies. The study has been divided into a preamble and four topics as well as a conclusion. The preamble, contained a set of methodical introductions and the terminology of the study, as well as the differences ...

The Legal Nature Of The Concessions And Investments Contracts Concluded By States In Accordance With B.O.T. System, Tariq Bin Hilal Al-Busaidy

Journal Sharia and Law

Different States conclude contracts for running public utilities or for investing public money. These contracts are known as concession contracts. The introduction of modern legalmethods: the BOT and the BOOT have complicated the arguments as to the legalnature of these contracts: are they classified under administrative contract or are they categorized as private law contracts? The main purpose of this research is to analyze the legalnature of these contracts.

The research concludes and affirms administrative nature of the concession contracts concluded by States in accordance with the BOT system. These contracts require:

A- Administrative authorizations

b- Their procedures are lengthy ...

Loopholes In Information Technology Contracts, Tark Kazim Ageel

Journal Sharia and Law

This research deals with the loopholes that may be found in Information Technology (IT) contracts and attempts to answer the following research question: are the generalrules governing traditionalIT contracts sufficient to dealwith them, or is there a need for another set of rules which are more compatible with such contracts and are better able to dealwith the loopholes that may arise (both moraland logical) in said contracts?

Writing In The Electronic Era Within The Frame Of Jordanian Law, Nael Ali Masadeh Dr.

Journal Sharia and Law

Writing is one of man’s ways of expression. Writing embraces ideas and thoughts able to be realized. Thus writing is used in contracts to express will of parties. In addition, writing is one of most important means of evidence. Besides, writing is required for some contracts to be contracted. Electronic writing is the one done on a computer. Both electronic and normal writing are similar to express thoughts and ideas and will. The law is equal regarding both normal and electronic writing. However, the condition of writing is achieved if it is performed electronically when it was required for ...

Time-Share Contract, A Comparative Study, Nada Salim Malla Alow

Journal Sharia and Law

The Time-Share is one of the important contracts that appear in the tourism field. The contract idea is based on the participation of a large number of people who benefit from the tourist resorts and hotels for spending holidays and vacations. The beneficiary may contract with the owner of the tourist establishment to buy a share in a hotel or touristic unit or to get benefit from it. In both cases, he/she has the right of residence in this real estate unit for a limited time yearly; one week minimum and one month as maximum instead of buying a ...

The Modern Legal Rules In The Fidic Contracts, Sameer Hamed Al Jamal

Journal Sharia and Law

The FIDIC contracts, adopted by the International Federation of Consulting Engineers, are relatively modern contracts. In fact, FIDIC contracts are the most common contracts in the organization of construction building in all countries of the world. This is because these contracts, in advance, put a contractual framework to overcome the problems of international construction and local communities and also to achieve the principle of self-sufficiency for the construction contracts and construction itself. The FIDIC contracts organize rights and obligations of the parties and also an equitable distribution of risk. The FIDIC contracts also organize orders changing construction work since the ...

The Domains Of Loyalty: Relationships Between Fiduciary Obligation And Intrinsic Motivation, Deborah A. Demott

William & Mary Law Review

Recent scholarly inquiry into fiduciary law predominantly focuses on whether the subject is a coherent field and not a piecemeal assortment of doctrinal detail. This Article looks to the future and to relationships between the formal domain of fiduciary law and other factors that shape conduct. These include intrinsic motivation, markets for professional services, and forces like the operation of reputation. The Article demonstrates that looking across domains, from the legal to the extralegal, casts in sharp relief the reasons why fiduciary law is distinctive. These stem from the specific qualities of relationships to which fiduciary law applies, as well ...

The Contract Interpretation Policy Debate: A Primer, Joshua M. Silverstein

Faculty Scholarship

Contract interpretation is one of the most significant areas of commercial law. As a result, there is an extensive academic and judicial debate over the optimal method for construing agreements. Throughout this exchange, scholars and courts have advanced a wide array of conceptual, theoretical, and empirical arguments in support of the two primary schools of interpretation— textualism and contextualism—as well as various hybrid positions. This Essay is intended to serve as a primer on those arguments.

The Guarantees Of Consumer Free Consent In Contracts Concluded Remotely: A Comparative Study, Dr.Adnan Sarhan

Journal Sharia and Law

resulted from his ignorance weakness arising because of the complication of goods and services that makes their use and risks are not to be realized easily by consumers, but also extends in the recent times to include misleading advertising techniques, the brilliant development in marketing in addition to the coercive nature of recent tools that are used in bargain and contracting. One of these tools is the use of distance selling contacts in addition to the common use of electronic contracts, since a consumer is surprised by a person negotiate and contract by telephone or internet and he does not ...

The Legality Of A Comprehensive Maintenance Contract Between Al-Gharar (Risk/Uncertainty) And Jurisprudential Need: An Analytical Purposive Study., Maher Haswa

Journal Sharia and Law

The comprehensive maintenance contract is a type of contemporized contracts to which the general rules of contracts apply. Under the contract, one party has the obligation, periodically and in emergency cases, to perform the necessary acts to keep a certain property in a good condition for its use. The contract also states the agreed wages, tools and raw materials.

Many scholars have been reluctant to rule for the legality of the comprehensive maintenance contract because it involves uncertainty. This led the Islamic Fiqh Academy to postpone its ruling on the contract for more studies. Therefore, this research analyses the effect ...

The Rise Of Force Majeure Amid Coronavirus Pandemic: Legitimacy And Implications For Energy Laws And Contracts, Cosmos Nike Nwedu

Natural Resources Journal

The global outbreak of coronavirus disease has become one of humanity’s current greatest challenges and may arguably surpass climate change in the short-term. The virus’s rapid dispersion through the transportation sector, its disruption to human health and global economies, has been remarkable. The energy sector has also been impacted, as it has seen episodic low prices of oil, particularly in April 2020. This scenario is due to less demand for oil amid various containment measures and related health policies of governments worldwide. The performance of existing oil and gas contracts, especially time-bound supply contracts, has been rendered impracticable ...

Crisis And Cultural Evolution: Steering The Next Normal From Self-Interest To Concern And Fairness, Robert A. Bohrer

Faculty Scholarship

This essay examines the current time of crisis and offers a vision of the way in which our society and our law can evolve in response. Crises of this scale are evolution-forcing events and I argue that the current moment can move us towards a fundamentally different vision of law and justice. It is the first essay or article to show that the autonomous pursuit of self-interest was a common assumption or value in the major intellectual forces of the twentieth century: classical free market economics, behavioral economics, and sociobiology, as well as in the competing visions of a just ...

Arthur Linton Corbin, Gregory Klass

Georgetown Law Faculty Publications and Other Works

This chapter on Arthur Linton Corbin will appear in the forthcoming collection, Scholars of Contract Law. The chapter provides a brief summary of Corbin’s life, then discusses five topics: Corbin’s Socratic approach to the classroom and his introduction of the caselaw method at Yale; Corbin’s analytic approach, which was inspired by Hohfeld and is illustrated by Corbin’s definitions of “contract” and “consideration”; Corbin’s evolutionary theory of the common law, his understanding of the relationship between law and social mores, and his insistence that legal rules always be treated as mere “working rules”; Corbin’s occasional ...

Contractual Evolution, Matthew Jennejohn, Julian Nyarko, Eric L. Talley

Faculty Scholarship

Conventional wisdom portrays contracts as static distillations of parties’ shared intent at some discrete point in time. In reality, however, contract terms evolve in response to their environments, including new laws, legal interpretations, and economic shocks. While several legal scholars have offered stylized accounts of this evolutionary process, we still lack a coherent, general theory that broadly captures the dynamics of real-world contracting practice. This paper advances such a theory, in which the evolution of contract terms is a byproduct of several key features, including efficiency concerns, information, and sequential learning by attorneys who negotiate several deals over time. Each ...

Viral Sovereignty, Vaccine Diplomacy, And Vaccine Nationalism: The Institutions Of Global Vaccine Access, Sam Halabi, Ana Santos Rutschman

All Faculty Scholarship

The COVID-19 pandemic has triggered a global vaccine race, and distributive questions about which countries will receive scarce doses and under which conditions pervade international law and diplomacy. As vaccines are distributed worldwide throughout 2021, this essay analyzes the problem of vaccine access as a critical question in the literature on sources of international law and the influence of those sources. As with past pandemics, research and development capacity is largely concentrated in the wealthy countries of Europe and North America with growing capabilities in East and South Asia. Over the course of 2020, some governments exercised extreme forms of ...

Not Pictured: Minnesota’S Disfavor Toward Forfeitures—Capistrant V. Lifetouch Nat’L Sch. Studios, Inc., 916 N.W.2d 23 (Minn. 2018)., Madalyn Elmquist

Mitchell Hamline Law Review

No abstract provided.

The New Decade Of Construction Contracts: Technological And Climate Considerations For Owners, Designers, And Builders, Geoffrey F. Palachuk

Seattle Journal of Technology, Environmental & Innovation Law

In the next decade, the construction industry faces two intertwined risks: implementation of new technologies and the impacts of climate change. Those overlapping risks will present both practical and legal issues for design professionals, developers, builders, legislators, and the public at large. Although the average participant in the construction industry may not think twice about the emergence or adoption of new technologies, or the effect of climate change on the completed project, those issues present nuanced legal implications. Construction projects and their contracts must adapt. While companies seek to implement new technologies, provide sustainable products, optimize project systems, and maximize ...

The Judicial Admissions Exception To The Statute Of Frauds: A Curiously Gradual Adoption, Wayne Barnes

Faculty Scholarship

The statute of frauds requires certain categories of contracts to be evidenced by a signed writing. The original purpose of the statute of frauds, indeed its titular purpose, is the prevention of the fraudulent assertion of a non-existent oral contract. Although a signed writing is the formal way in which to satisfy the statute of frauds, courts have long recognized various exceptions to the writing requirement which will be held to satisfy the statute absent a writing. The effect of such exceptions is that they constitute an alternative form of evidence for the presence of a contract. One such exception ...