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Articles 1 - 30 of 60
Full-Text Articles in Law
Expecting Specific Performance, Tess Wilkinson-Ryan, David Hoffman, Emily Campbell
Expecting Specific Performance, Tess Wilkinson-Ryan, David Hoffman, Emily Campbell
Articles
Using a series of surveys and experiments, we find that ordinary people think that courts will give them exactly what they bargained for after breach of contract; in other words, specific performance is the expected contractual remedy. This expectation is widespread even for the diverse array of deals where the legal remedy is traditionally limited to money damages. But for a significant fraction of people, the focus on equity seems to be a naïve belief that is open to updating. In the studies reported here, individuals were less likely to anticipate specific performance when they were briefly introduced to the …
Specific Performance: On Freedom And Commitment In Contract Law, Hanoch Dagan, Michael A. Heller
Specific Performance: On Freedom And Commitment In Contract Law, Hanoch Dagan, Michael A. Heller
Faculty Scholarship
When should specific performance be available for breach of contract? This question — at the core of contract — divides common-law and civil-law jurisdictions and it has bedeviled generations of comparativists, along with legal economists, historians, and philosophers. Yet none of these disciplines has provided a persuasive answer. This Article provides a normatively attractive and conceptually coherent account, one grounded in respect for the autonomy of the promisor’s future self. Properly understood, autonomy explains why expectation damages should be the ordinary remedy for contract breach. This same normative commitment justifies the “uniqueness exception,” where specific performance is typically awarded, and …
Equity In American And Jewish Law, Itzchak E. Kornfeld , Ph.D.
Equity In American And Jewish Law, Itzchak E. Kornfeld , Ph.D.
Touro Law Review
No abstract provided.
Inefficiency Of Specific Performance As A Contractual Remedy In Chinese Courts: An Empirical And Normative Analysis, Lei Chen, Larry A. Dimatteo
Inefficiency Of Specific Performance As A Contractual Remedy In Chinese Courts: An Empirical And Normative Analysis, Lei Chen, Larry A. Dimatteo
Northwestern Journal of International Law & Business
This article investigates the values and latent policies in the area of the availability of specific performance (SP) as a contractual remedy, which have shaped the development of Chinese law. The National People’s Congress (Legislature) and Supreme People’s Court in China have addressed the remedial structure of Chinese contract law, namely, the availability of the remedy of SP as opposed to the awarding of damages only. The law is clear that the remedies of SP and damages are ordinary remedies that a claimant is free to choose between. The question that this article confronts is whether in practice the equality …
Inefficiency Of Specific Performance As A Contractual Remedy In Chinese Courts: An Empirical And Normative Analysis, Lei Chen, Larry A. Dimatteo
Inefficiency Of Specific Performance As A Contractual Remedy In Chinese Courts: An Empirical And Normative Analysis, Lei Chen, Larry A. Dimatteo
UF Law Faculty Publications
This article investigates the values and latent policies, which have shaped the development of Chinese law in the area of the availability of specific performance (SP) as a contractual remedy. The National People’s Congress (Legislature) and Supreme People’s Court in China have addressed the remedial structure of Chinese contract law, namely, the availability of the remedy of SP as opposed to the awarding of damages-only. The law is clear that the remedies of SP and damages are ordinary remedies that a claimant is free to choose between. The question that is confronted in this article is whether in practice the …
Preinvention Assignment Agreement Breach: A Practical Alternative To Specific Performance Or Unqualified Injunction, Jenny R. Turner
Preinvention Assignment Agreement Breach: A Practical Alternative To Specific Performance Or Unqualified Injunction, Jenny R. Turner
Journal of Intellectual Property Law
No abstract provided.
Waive Goodbye To Appellate Review Of Plea Bargaining: Specific Performance Of Appellate Waiver Provisions Should Be Limited To Extraordinary Circumstances, Holly P. Pratesi
Waive Goodbye To Appellate Review Of Plea Bargaining: Specific Performance Of Appellate Waiver Provisions Should Be Limited To Extraordinary Circumstances, Holly P. Pratesi
Brooklyn Law Review
In the federal criminal justice system, plea bargaining remains the predominant method for disposing of cases. An important provision in most plea agreements consists of the waiver of the defendant’s right to appeal the conviction or sentence. This note explores the constitutional, contractual, and policy implications of a recent Third Circuit decision that would allow specific performance as a remedy where a defendant’s only breach of the plea agreement consists of filing an appeal arguably precluded by an appellate waiver provision. This note argues that the approach taken by the Third Circuit in United States v. Erwin could effectively preclude …
Remedies: A Guide For The Perplexed, Doug Rendleman
Remedies: A Guide For The Perplexed, Doug Rendleman
Doug Rendleman
Remedies is one of a law student’s most practical courses. Remedies students and their professors learn to work with their eyes on the question at the end of litigation: what can the court do for the successful plaintiff? Remedies develops students’ professional identities and broadens their professional horizons by reorganizing their analysis of procedure, torts, contracts, and property around choosing and measuring relief - compensatory damages, punitive damages, an injunction, specific performance, disgorgement, and restitution. This article discusses the law-school course in Remedies - the content of the Remedies course, the Remedies classroom experience, and Remedies outside the classroom through …
Contract Remedies In Action: Specific Performance, Yonathan A. Arbel
Contract Remedies In Action: Specific Performance, Yonathan A. Arbel
West Virginia Law Review
No abstract provided.
Tortious Interference And The Law Of Contract: The Case For Specific Performance Revisited, Deepa Varadarajan
Tortious Interference And The Law Of Contract: The Case For Specific Performance Revisited, Deepa Varadarajan
Deepa Varadarajan
What is the role of contract law in remedying breach? The question of the appropriate legal remedy, specific performance versus money damages, has provided adequate fodder for three decades of debate in the law and economics discourse. In the legal discipline at large, the topic has spurred centuries of debate, as illustrated by Oliver Wendell Holmes's famous line: “The only universal consequence of a legally binding promise is, that the law makes the promisor pay damages if the promised event does not come to pass.” Holmes's approach to contractual remedy would evolve during the latter half of the twentieth century …
The Convention On Contracts For The International Sale Of Goods And The General Conditions For The Sale Of Goods, H. Lalla Shishkevish
The Convention On Contracts For The International Sale Of Goods And The General Conditions For The Sale Of Goods, H. Lalla Shishkevish
Georgia Journal of International & Comparative Law
No abstract provided.
Damages Versus Specific Performance: Lessons From Commercial Contracts, Theodore Eisenberg, Geoffrey P. Miller
Damages Versus Specific Performance: Lessons From Commercial Contracts, Theodore Eisenberg, Geoffrey P. Miller
Cornell Law Faculty Publications
Specific performance is a central contractual remedy but, in Anglo-American law, generally is subordinate to damages. Despite rich theoretical discussions of specific performance, little is known about parties' treatment of the remedy in their contracts. We study 2,347 contracts of public corporations to quantify the presence or absence of specific performance clauses in several types of contracts. Although a majority of contracts do not refer to specific performance, substantial variation exists in the rates of including specific performance clauses. High rates of specific performance use in the area of corporate combinations through merger (53.4 percent) or assets sales (45.1 percent), …
Law And Equity In Contract Enforcement, Emily Sherwin
Law And Equity In Contract Enforcement, Emily Sherwin
Emily L Sherwin
No abstract provided.
A Nihilistic View Of The Efficient Breach, Jeffrey L. Harrison
A Nihilistic View Of The Efficient Breach, Jeffrey L. Harrison
UF Law Faculty Publications
This article began as a reaction to an article by Daniel Makovits and Alan Schwartz in the Virginia Law Review, “The Myth of the Efficient Breach. . . .” In their article they offer what they call “new defenses” of the expectation interest as a contract remedy. Much of their analysis has been anticipated by others. Plus, in my view the law and economics concepts they seem to rely on lost their legitimacy years ago. Their article was the catalyst for this broader examination of forty years of writing about the efficient breach and an assessment of where it has …
Remedies: A Guide For The Perplexed, Doug Rendleman
Remedies: A Guide For The Perplexed, Doug Rendleman
Scholarly Articles
Remedies is one of a law student’s most practical courses. Remedies students and their professors learn to work with their eyes on the question at the end of litigation: what can the court do for the successful plaintiff? Remedies develops students’ professional identities and broadens their professional horizons by reorganizing their analysis of procedure, torts, contracts, and property around choosing and measuring relief - compensatory damages, punitive damages, an injunction, specific performance, disgorgement, and restitution. This article discusses the law-school course in Remedies - the content of the Remedies course, the Remedies classroom experience, and Remedies outside the classroom through …
Deal Deconstructions, Case Studies, And Case Simulations: Toward Practice Readiness With New Pedagogies In Teaching Business And Transactional Law, Michelle M. Harner, Robert J. Rhee
Deal Deconstructions, Case Studies, And Case Simulations: Toward Practice Readiness With New Pedagogies In Teaching Business And Transactional Law, Michelle M. Harner, Robert J. Rhee
American University Business Law Review
No abstract provided.
Penalty Clauses As Remedies: Exploring Comparative Approaches To Enforceability, Jack Graves
Penalty Clauses As Remedies: Exploring Comparative Approaches To Enforceability, Jack Graves
Touro Law Review
No abstract provided.
A Complete View Of The Cathedral: Claims Of Tortious Interference And The Specific Performance Remedy In Mergers And Acquisitions Litigation, Luke Nikas, Paul B. Maslo
A Complete View Of The Cathedral: Claims Of Tortious Interference And The Specific Performance Remedy In Mergers And Acquisitions Litigation, Luke Nikas, Paul B. Maslo
Michigan Business & Entrepreneurial Law Review
A bank promises to lend several billion dollars to fund a buyer’s purchase of a target company. The buyer enters into a merger agreement with the target. Thereafter, the economy plummets, and the bank decides that breaching its contract with the buyer will cost less than performing. The buyer seeks specific performance. The target also sues the bank, alleging tortious interference with the merger agreement. Billions of dollars are on the line. This is the reality lived by many investment banks that committed to fund leveraged buyouts during the recent economic downturn. Most of these matters were resolved in private …
A Nihilistic View Of The Efficient Breach, Jeffrey L. Harrison
A Nihilistic View Of The Efficient Breach, Jeffrey L. Harrison
Jeffrey L Harrison
No abstract provided.
All Dogs Go To Heaven... Or Divorce Court: New Jersey Unleashes A Subjective Value Consideration To Resolve Pet Custody Litigation In Houseman V. Dare, Eric Kotloff
Villanova Law Review
No abstract provided.
A Critique Of The Efficient Performance Hypothesis, Jody S. Kraus
A Critique Of The Efficient Performance Hypothesis, Jody S. Kraus
Faculty Scholarship
The classic economic justification of contract law’s default remedy of expectation damages is grounded on the efficient breach hypothesis: that promisors should be permitted and encouraged to breach when the net gains from breach exceed the net gains from performance. Expectation damages ensure that all and only efficient breaches will occur because promisors will find breach profitable only if its benefits exceed the value of performance to the promisee. The efficient breach hypothesis, and the defense of expectation damages that rests on it, has long been criticized for being inconsistent with the moral intuition that promisors necessarily forfeit their right …
Ratification Of Sales Agreement Through Other Documents Referring To It: Behniwal V Mix, 2005, Roger Bernhardt
Ratification Of Sales Agreement Through Other Documents Referring To It: Behniwal V Mix, 2005, Roger Bernhardt
Publications
This article discusses a California case which held that vendors had effectively ratified a purchase agreement signed by their agent because they had signed disclosure statements that sufficiently referred to the agreement.
Buyers' Remedies In General And Buyers' Performance-Oriented Remedies (25th Anniversary Of The United Nations Convention On Contracts For The International Sale Of Goods), Harry Flechtner
Articles
This paper focuses on Articles 45, 46 and 28 of the CISG - provisions that, despite their importance in the substantive scheme of the Convention, have not generated a great deal of case law or controversy. Article 45, the lead provision of Section III ("Remedies for Breach of Contract by the seller") of Part III, Chapter II of the CISG, provides an overview or catalogue of an aggrieved buyer's remedies (Article 45(1)), along with a rule that coordinates buyers' remedies (Article 45(2)) and a rule of general applicability for all of the buyers' remedies (Article 45(3)). Article 46 provides for …
Corbello V. Iowa Production And The Implications Of Restoration Damages In Louisiana: Drilling Holes In Deep Pockets For Thirty-Three Million Dollars, Mary Beth Balhoff
Corbello V. Iowa Production And The Implications Of Restoration Damages In Louisiana: Drilling Holes In Deep Pockets For Thirty-Three Million Dollars, Mary Beth Balhoff
Louisiana Law Review
No abstract provided.
Tortious Interference And The Law Of Contract: The Case For Specific Performance Revisited, Deepa Varadarajan
Tortious Interference And The Law Of Contract: The Case For Specific Performance Revisited, Deepa Varadarajan
Faculty Publications
What is the role of contract law in remedying breach? The question of the appropriate legal remedy, specific performance versus money damages, has provided adequate fodder for three decades of debate in the law and economics discourse. In the legal discipline at large, the topic has spurred centuries of debate, as illustrated by Oliver Wendell Holmes's famous line: “The only universal consequence of a legally binding promise is, that the law makes the promisor pay damages if the promised event does not come to pass.” Holmes's approach to contractual remedy would evolve during the latter half of the twentieth century …
Forgotten Equity: The Enforcement Of Forum Clauses, Graydon S. Staring
Forgotten Equity: The Enforcement Of Forum Clauses, Graydon S. Staring
Graydon S. Staring
When courts differ widely and sharply on which of three or four procedural courses shouold be taken to enforce a contractual right of unquestioned validity, and every such course openly strains orthodox procedural doctrine, we may suslpect they are all wrong. We can confirm that they are wrong when we recognize the right in question is not a procedural incident at all but the right to a substantive performance, bargained for by the parties, that has about it an illusory appearance of procedure and, because of its substance, does not fit comfortably within merely procedural doctrine. Such is the right …
Players, Owners, And Contracts In The Nfl: Why The Self-Help Specific Performance Remedy Cannot Escape The Clean Hands Doctrine, Stephen C. Wichmann
Players, Owners, And Contracts In The Nfl: Why The Self-Help Specific Performance Remedy Cannot Escape The Clean Hands Doctrine, Stephen C. Wichmann
Seattle University Law Review
Is it fair that professional football players possess so much control in renegotiating contracts? Do the players in fact possess the control that we perceive them to have? Often, players do have most of the bargaining power, as in the case of college players being chosen in the draft. Once a team has chosen to pursue a draftee out of college, no other team has the right to interfere with that process. If that club fails to sign the player, the club wastes a valuable pick, and there is no remedy for such a failure. But after that introduction into …
Separation Of Powers And The Separate Treatment Of Contract Claims Against The Federal Government For Specific Performance, Richard H. Seamon
Separation Of Powers And The Separate Treatment Of Contract Claims Against The Federal Government For Specific Performance, Richard H. Seamon
Villanova Law Review
No abstract provided.
Law And Equity In Contract Enforcement, Emily Sherwin
Law And Equity In Contract Enforcement, Emily Sherwin
Cornell Law Faculty Publications
No abstract provided.