Law Commons^™

Contracts, Claude D. Rowher

Cal Law Trends and Developments

Recent decisions have brought about a number of changes in the area of contract interpretation. Although the general trends seem clear and commendable, the details are often obscure and bothersome.

Contracts, Robert G. Meiners

Cal Law Trends and Developments

No abstract provided.

Standardization Of Standard-Form Contracts: Competition And Contract Implications, Mark R. Patterson

William & Mary Law Review

Standard-form contracts are a common feature of commercial relationships because they offer the advantage of lower transaction costs. This advantage of standard contracts is increased when there is a second layer of standardization under which multiple firms agree on a standard contract. Trade associations and similar entities often effect standardization of this kind through collective agreement on a standard contract, sometimes under the aegis of state actors. Multifirm contract standardization can provide not only the usual transaction-cost advantages of standard-form contracts, but also increased competition among firms, because a standard contract makes comparison among firms’ offerings easier. But standardization among …

Contracts, William T. Laube

Cal Law Trends and Developments

In any given twelve-month reporting period there is, for some reason, a case emphasis on particular problems in each major classification of the law. The field of contracts is no exception. For the period covered by this volume, two basic contract problems float to the surface in the pool of reported appellate decisions. The first problem discussed, and illustrated by a number of recent cases, relates to the obligation to pay "more money" for merchandise or services than that provided for in the original contract. There are various background situations which activate the demand for "more money," but the most …

Commercial Transactions, Neil M. Levy

Cal Law Trends and Developments

The emphasis of this article reflects the degree to which commercial law today is statutory. Particularly in California, where the Uniform Commercial Code has only been in effect since January 1, 1965, few cases construing that statute reached the appellate courts during the year 1967. However, the state legislature in 1967 amended 25 sections of the California Commercial Code. Although these amendments cover a wide range of substantive problems, they can be viewed in the light of the policy of the code as enunciated in section 1102(2)(c), "[t]o make uniform the law among the various jurisdictions." In addition, one group …

Contracts In Context And Contracts As Context, Larry A. Dimatteo, Blake D. Morant

UF Law Faculty Publications

The annual Business Law Symposium of the Wake Forest Law Review has a distinguished legacy of noteworthy programs that shed light on seminal issues affecting contemporary business in the United States. This edition builds on that tradition of excellence with a focus on the ubiquitous phenomenon of contracts and bargaining behavior. Contract law appears as a set of policies and rules that provide order for those who transact bargains. Indeed, contract law and the rules that it engenders seemingly facilitate an efficient system of transactional conduct that, on its face, appears objective.

Part II of this introductory Article briefly examines …

Defining Hospitality Entities In Contracts And Statutes: A Proactive And Preventative Approach, Andrea Bastian, Stephen Barth

Golden Gate University Law Review

This Comment serves as a guide to contracting parties and legislative drafters to initially, in an accurate and descriptive manner, define the scope of the entity, and thus, avoid litigation. Additionally, the factors enumerated through permissive uses and restrictive covenants (such as a dancing or minimum stay requirement) if utilized, will enhance the enforceability of the statutes and contractual restrictive covenants.

Trends On The Harmonization Of Contract Law In Africa, Salvatore Mancuso

Annual Survey of International & Comparative Law

Taking into consideration both the need for domestic legal reform in commercial matters and the importance of promoting harmonized commercial solutions for Africa, in this paper I first review the concept of legal harmonization in general and with particular reference to the situation in Africa. I then provide an overview of OHADA and COMESA, the two main initiatives of regional integration in Africa having implications in the harmonization of commercial law in general, and in the law of contract in particular. I conclude by affirming the interest of further exploring the possibilities related to the harmonization/uniformization of the law of …

They Can Do What!? Limitations On The Use Of Change-Of-Terms Clauses, Peter A. Alces, Michael M. Greenfield

Faculty Publications

No abstract provided.

Relational Contract Theory And Management Contracts: A Paradigm For The Application Of The Theory Of The Norms, Michael Diathesopoulos

Michael Diathesopoulos

This paper examines management contracts as a paradigm for the application of relational contracts theory and especially of the theory of contractual and relational norms. This theory, deriving from Macauley's implications, but structured and analysed by I.R. MacNeil gives us a framework for the explanation and understanding of contractual obligations and business relations' rules and practice. After presenting the key literature about the norms theory and especially defining the content of MacNeil's norms, we define management contracts as relations, characterised by a high relational element and we explain why, investigating all their features, which make them a suitable object for …

What’S Software Got To Do With It? The Ali Principles Of The Law Of Software Contracts, Juliet Moringiello, William Reynolds

Juliet M Moringiello

In May, 2009, the American Law Institute (“ALI”) approved its Principles of the Law of Software Contracts (“Principles”). The attempt to codify, or at least unify, the law of software contracts has a long and contentious history, the roots of which can be found in the attempt to add an Article 2B to the Uniform Commercial Code (“UCC”) in the mid-1990s. Article 2B became the Uniform Computer Information Transactions Act (“UCITA”) when the ALI withdrew from the project in 1999, and UCITA became the law in only two states, Virginia and Maryland. UCITA became a dirty word, with several states …

The Lingering Influence Of Richard Ii And Lord Coke In The American Admiralty, Graydon S. Staring

Graydon S. Staring

It must be fair to say that a useful commercial and legal regime should be spread as wide as its usefulness, with as few artificial and irrelevant barriers as possible. All of our irrelevant barriers have been discredited in various situations, but two of them, viz. as to contracts made on land or to be performed in part on land, remain anomalously in two irrational and inconvenient applications. As they have no statutory sanction, they can be corrected by the courts, just as they have nullified them both in other situations and rationalized the jurisdiction in other respects. Cease the …

Pizza-Box Contracts: True Tales Of Consumer Contracting Culture, Amy J. Schmitz

Faculty Publications

Do you ask for contract or purchase terms prior to completing your everyday purchases? Do you first read the pizza box before paying the pizza delivery guy or gal? Typical consumers do not ask for or read their contracts prepurchase, and companies have become accustomed to burying purchase terms in product packaging or Internet links. These postpurchase, rolling, or “pizza-box” contracts have therefore become the norm in the consumer marketplace, and courts generally enforce them as legitimate contracts. This Article discusses varying theoretical perspectives on enforcement of these pizza-box contracts, and explores the available empirical data bearing on the legitimacy …

The Productive Tension Between Official And Unofficial Stories Of Fault In Contract Law, Martha M. Ertman

Martha M. Ertman

Officially Contract law ignores fault. However, an unofficial story complements the official one, and explains why fault occasionally slips into contract law through doctrines such as willful breach. This chapter of FAULT IN AMERICAN CONTRACT LAW (Omri Ben-Shahar & Ariel Porot, eds, Cambridge U. Press, forthcoming 2010) argues that the official and unofficial stories operate in productive tension to both facilitate ex ante planning and, when necessary, look backward at reasons for breach to reach a just result. The occasional presence of fault in contract law, in this view, represents merely one more instance of the common doctrinal pattern of …

Taming The Unruly Horse! Contractual Illegality And Public Policy: Fitzgerald V Fj Leonhardt Pty Ltd, Jay Forder

Jay Forder

Extract: FJ Leonhardt Pty Ltd (the "driller") sued for payment under a contract to drill for water. The contract had been performed without all the necessary permits. This was through no fault of the driller - he had complied with the requirements as implemented by the Water Authority at the time. While the contract was perfectly legal when formed, the question is whether it is to be rendered unenforceable because its performance unwittingly breached a statutory requirement of obtaining a prior permit. There is a line of authority which suggests that even where a contract is illegal as performed, it …

Expectation Damages, The Objective Theory Of Contracts, And The "Hairy Hand" Case: A Proposed Modification To The Effect Of Two Classical Contract Law Axioms In Cases Involving Contractual Misunderstandings, Daniel P. O'Gorman

Kentucky Law Journal

No abstract provided.

Failed Synallagmatic Contracts : Appraisal Of The Maxim "The Party Who Has Control And Can Insure Against The Loss Should Shoulder The Risk", Aimite Jorge

Aimite Jorge

The current position in South African law on enrichment situations arising from "failed agreements" is that "if you have received a performance in terms of a contract which subsequently fails for whatever reason, you give it back if you still have it; if you cannot give it back, you are absolved, unless you were culpable in relation to the loss". Daniel Visser, however, challenges this approach and proposes a new one in his recently published book, Unjustified Enrichment (2008). This article evaluates both this position and the newly suggested approach and it argues that in cases of failed synallagmatic contracts …

Explaining Adversarial Boilerplate Language In The Battle Of The Forms: Are Consequential Damages In The U.C.C. Gap Fillers A Penalty Default Rule?, Ryan D. Griffee

Ryan D Griffee

In this article, game theory is applied to the battle of the forms and related scenarios to explain Daniel Keating’s observations, reported in the article "Exploring the Battle of the Forms in Action," 98 MICH. L. REV. 2678 (2000). The first of the two major findings in the paper is that drafters of boilerplate language should use adversarial, U.C.C. § 2-207(1) proviso-conforming language to ensure that clients receive terms that are no worse than the default U.C.C. gap fillers. This is done first by explaining how courts apply U.C.C. § 2-207 to the battle of the forms, and then applying …

Bailment Or Lease: A Legal And Economic Analysis, Wei Zhang

Wei Zhang

When customers temporarily deposit their personal properties with a business which collects a fee, either directly or by incorporating the charge into the price of its goods or services (such as a locker at the supermarket, a parking garage, or a bank safe deposit box), it has long been disputed whether a bailment or a lease contract arises between the two parties. In this paper, I tried to approach this problem from a law and economics perspective. Efficiency-oriented judges should establish rules motivating parties to take optimal precautions to minimize the social costs associated with the loss of the property. …

'Freedom Of Contract' In Halachic Family Law? – A Comparison Of The Babylonian Talmud And The Palestinian Talmud, Yehezkel Margalit

Hezi Margalit

Recently we are witness to a growing interest in nuptial agreements, both in Jewish and civil law. In civil law it is customary to trace the “meta-story” of the development of civil family law from sacrament to status and from status to contract. Indeed, during the last fifty years we have seen how nuptial agreements developed to regulate different aspects of marriage in civil law, both in Israel and in the rest of the world. During the last twenty-five years an interest has also emerged in halakhic perspectives on “freedom of contract,” which is available for couples who wish to …

The Productive Tension Between Official And Unofficial Stories Of Fault In Contract Law, Martha M. Ertman

Faculty Scholarship

Officially Contract law ignores fault. However, an unofficial story complements the official one, and explains why fault occasionally slips into contract law through doctrines such as willful breach. This chapter of FAULT IN AMERICAN CONTRACT LAW (Omri Ben-Shahar & Ariel Porot, eds, Cambridge U. Press, forthcoming 2010) argues that the official and unofficial stories operate in productive tension to both facilitate ex ante planning and, when necessary, look backward at reasons for breach to reach a just result. The occasional presence of fault in contract law, in this view, represents merely one more instance of the common doctrinal pattern of …

Economic Value, Equal Dignity And The Future Of Sweepstakes, Anthony N. Cabot, Glenn J. Light, Karl F. Rutledge

UNLV Gaming Law Journal

The three basic forms of prize gaming are gambling, sweepstakes, and contests. Most states have a common approach to determining the legality of prize gaming. In general, states analyze if an activity includes three factors associated with gambling: (1) opportunity to win a prize, (2) winning based on chance, and (3) consideration paid to take that chance. If you take away any one of the three elements of gambling—consideration, prize, or chance—you have an activity that is lawful in most states. A contest, for example, differs from gambling because the winner is determined by skill. Determination of whether a (pay-for-play) …

Reply: Clawback To The Future, Miriam A. Cherry, Jarrod Wong

Faculty Publications

(Excerpt)

In Clawbacks: Prospective Contract Measures in an Era of Excessive Executive Compensation and Ponzi Schemes (the “Article”), we undertook the task of proposing a doctrine of clawbacks that would not only furnish a framework for analyzing the term more systematically, but would also describe the ways the doctrine would relate to established rules of contract law. With his response, In the Shadow of the Omnipresent Claw: In Response to Professors Cherry & Wong (the “Response”), Michael Macchiarola has provided us with an opportunity to articulate these thoughts on the doctrine of clawbacks further, and for that opportunity and his …

Expectation Damages The Objective Theory Of Contracts And The Hairy Hand Case A Proposed Modification To The Effect Of Two Classical Contract Law Axioms In Cases Involving Contractual, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Solomon And Strikes: Labor Activity, The Contract Doctrine Of Impossibility Or Impracticability Of Performance, And Federal Labor Policy, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Show Me The Money The Applicability Of Contract Laws Ratification And Tenderback Doctrines To Title Vii Releases, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Misclassifying The Insurance Policy: The Unforced Errors Of Unilateral Contract Characterization, Hazel G. Beh, Jeffrey W. Stempel

Scholarly Works

Insurance policies are traditionally classified as unilateral or “reverse-unilateral” contracts, a characterization we find largely incorrect, with problematic consequences for adjudication of insurance coverage disputes. In addition to the general difficulties attending the unilateral classification, the concept as applied to insurance policies is not only unhelpful but incorrect. Insurance policies are more accurately viewed as bilateral contracts. In addition, the unilateral characterization of insurance policies introduces error and inconsistency into the litigation of insurance controversies. In particular, the unilateral view tends toward excessive formalism and focus on so-called “conditions” precedent to coverage, eschewing material breach analysis and encouraging needless forfeitures …

Do Liquidated Damages Encourage Breach? A Psychological Experiment, Tess Wilkinson-Ryan

All Faculty Scholarship

This Article offers experimental evidence that parties are more willing to exploit efficient-breach opportunities when the contract in question includes a liquidated-damages clause. Economists claim that the theory of efficient breach allows us to predict when parties will choose to breach a contract if the legal remedy for breach is expectation damages. However, the economic assumption of rational wealth-maximizing actors fails to capture important, shared, nonmonetary values and incentives that shape behavior in predictable ways. When interpersonal obligations are informal or underspecified, people act in accordance with shared community norms, like the moral norm of keeping promises. However, when sanctions …

From The Mouths Of Babes: Protecting Child Authors From Themselves, Julie Cromer Young

West Virginia Law Review

No abstract provided.

The Promissory Character Of Adequate Assurances Of Performance, Michael J. Borden

Law Faculty Articles and Essays

Part I provides the reader with an account of the development of the doctrine of adequate assurances from its earliest roots in the doctrine of anticipatory repudiation. Part II explains the workings of the modern doctrine in the context of a recent case. In Part III, I argue that promises made in response to a demand for adequate assurances can be understood as a class of enforceable promises. In Parts IV and V, I attempt to work out the back-end consequences that would result from treating assurances as enforceable promises.