Contracts Commons^™

The Uniform Commercial Acts, J.P. Mckeehan

Dickinson Law Review (2017-Present)

The Commissioners on Uniform State Laws have had twenty- five annual conferences. The principal fruit of their labors is represented by the Negotiable Instruments Act, enacted in forty-seven jurisdictions; the Warehouse Receipts Act, enacted in thirty-one jurisdictions; the Sales Act, enacted in fourteen jurisdictions, the Bills of Lading Act enacted in thirteen jurisdictions, and the Stock Transfer Act, enacted in nine jurisdictions. They have also drafted acts relating to divorce, family desertion, probate of wills, marriage evasion, workmen’s compensation and partnership but these have not yet been enacted in more than a few states. All of the commercial acts are …

Lord Denning’S Influence On Contract Formation In Singapore: An Overdue Demise?, Chia Ming Lee, Kenny Chng

Research Collection Yong Pung How School Of Law

In a series of inconsistent decisions by the Singapore courts on contract formation in continuing negotiations cases, Lord Denning’s broad approach—which does away with the traditional offer and acceptance analysis—appears to have been simultaneously adopted and rejected. This article suggests that the continued uncertainty in Singapore regarding the scope of application of the traditional approach and Lord Denning’s approach arises from a conflation of both as being substantially similar. This article further argues that both approaches are conceptually and practically distinct. A better way forward for Singapore law in the area of contract formation in continuing negotiations cases, having regard …

Smart Contracts: Terminology, Technical Limitations And Real World Complexity, Eliza Mik

Research Collection Yong Pung How School Of Law

If one is to believe the popular press and many “technical writings,” blockchains create not only a perfect transactional environment but also obviate the need for banks, lawyers and courts. The latter will soon be replaced by smart contracts: unbiased and infallible computer programs that form, perform and enforce agreements. Predictions of future revolutions must, however, be distinguished from the harsh reality of the commercial marketplace and the technical limitations of blockchains. The fact that a technological solution is innovative and elegant need not imply that it is commercially useful or legally viable. Apart from attempting a terminological “clean-up” surrounding …

Tales From A Form Book: Stock Stories And Transactional Documents, Susan M. Chesler, Karen J. Sneddon

Montana Law Review

Tales from a Form Book: Stock Stories and Transactional Documents

Foreclosure Diversion And Mediation In The States, Alan M. White

Georgia State University Law Review

The recent mortgage foreclosure crisis, whose economic effects are well known, transformed state legal structures governing the mortgage foreclosure process. What had been a relatively routine system of default judgments and auction sales has evolved into a negotiation and workout practice in which homeowners contest foreclosures, demand loan modifications and short sales, and propose other alternatives to foreclosures.

A profusion of state laws and court orders were adopted between 2008 and 2014 with the aim of promoting negotiated foreclosure alternatives. These laws have produced a variety of experiments in the “laboratories of democracy.” The defaults—whether home loans are renegotiated, defaults …

Convergence Between Australian Common Law And English Common Law: The Rule Against Penalties In The Age Of Freedom Of Contract, Man Yip, Yihan Goh

Research Collection Yong Pung How School Of Law

This note discusses the High Court of Australia decision of Paciocco v Australia and New Zealand Bank Group Limited on the rule against penalty clauses and situates its importance in light of the UK Supreme Court decision of Cavendish Square Holding BV v Talal El Makdessi and Beavis v ParkingEye Ltd.
It compares the analytical frameworks laid down in the two cases and
points out some unresolved issues in this area of law even following
these cases.

The New Era Of Doing Business With Iran: Iran’S International Commercial Transactions And Global Security, John Changiz Vafai

Pace International Law Review

On January 17, 2016, in a statement following his signing of the Joint Comprehensive Plan of Action (JCPOA) with Iran, President Obama addressed that country’s people, stating that “yours is a great civilization, with a vibrant culture that has so much to contribute to the world – in commerce, and in science and the arts.” While the former U.S. President’s evaluation of the Iranian people’s greatness is indisputable, there are questions concerning doing business with Iran which transcend conventional legal issues and commercial problems.

Given the juxtaposition of Iran’s duopolistic government structure and ideologically oriented decision-making processes, questions arise as …

Market Information And The Elite Law Firm, Elisabeth De Fontenay

Faculty Scholarship

As a subcategory of contract negotiations, corporate transactions present information problems that have not been fully analyzed. In particular, the literature does not address the possibility that parties may simply be unaware of value-increasing transaction terms or their outside option. Such unawareness can arise even for transactions that attract many competing parties, if the bargaining process is such that (1) the price terms are negotiated and fixed prior to the non-price terms, contrary to the standard assumption; and (2) some of the non-price terms remain private for some period of time.

A simple bargaining model shows that, when such unawareness …

The Rules Of The Game And The Morality Of Efficient Breach, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Moralists have long criticized the theory of efficient breach for its advocacy of promise breaking. But a fully developed theory of efficient breach has an internal morality of its own. It argues that sophisticated parties contract for efficient breach, which in the long run maximizes everyone’s welfare. And the theory marks some breaches—those that are opportunistic, obstructive, or otherwise inefficient—as wrongs that the law should deter, as transgressions that should not be priced but punished. That internal morality, however, does not excuse the theory from moral scrutiny. An extended comparison to Jean Renoir’s 1939 film, La Règle du Jeu (“The …

Unauthorised Fiduciary Gains And The Constructive Trust, Alvin W. L. See

Research Collection Yong Pung How School Of Law

This article challenges the traditional assumption that all cases of unauthorised fiduciary gain warrant the same legal treatment, in particular the imposition of a constructive trust as a disgorgement remedy. It proposes a method of categorising the cases and ranking them based on the strength of the principal’s interest. It is suggested that in cases where the principal’s interest is not particularly strong, there is room for taking into account the interests of innocent third parties and affording them the necessary protection. For this purpose, the remedial constructive trust supplies the needed flexibility.

A Renewed Consideration Of Consideration: Mwb Business Exchange Centres Ltd V Rock Advertising Ltd [2016] Ewca Civ 553, Kenny Chng, Yihan Goh

Research Collection Yong Pung How School Of Law

This note argues thatthe English Court of Appeal decision of MWBBusiness Exchange Centres Ltd v Rock Advertising Ltd is a significantmodification of the present understanding of consideration with respect toagreements to accept part-payments of a debt and to perform pre-existing duties,and that the preferred way forward for the development of the law should be judicialintervention by the Supreme Court to reconcile the logical inconsistenciesbetween Foakes v Beer and Williams v Roffey Bros & Nicholls(Contractors) Ltd.

Law School News Guiding Startups Through Legal Pickles: Law Students Launch Artisan Pickler And Other Businesses To Success 11/09/2016, Jill Rodriques

Life of the Law School (1993- )

No abstract provided.

Employment Agreements For The Inventing Worker: A Proposal For Reforming Trailer Clause Enforceability Guidelines, Peter Caldwell

Journal of Intellectual Property Law

No abstract provided.

Consumer Preferences For Performance Defaults, Franklin G. Snyder, Ann M. Mirabito

Michigan Business & Entrepreneurial Law Review

Commercial law in the United States is designed to facilitate private transactions, and thus to enforce the presumed intent of the parties, who generally are free to negotiate the terms they choose. But these contracts inevitably have gaps, both because the parties cannot anticipate every situation that might arise from their relationship, and because negotiation is not costless. When courts are faced with these gaps in a litigation context, they supply default terms to fill them. These defaults usually are set to reflect what courts believe similar parties would have agreed to if they had addressed the issue. These “majoritarian” …

Reasonable Standards For Contract Interpretations Under The Cisg, Donald J. Smythe

Cardozo Journal of International and Comparative Law

The United Nations ("UN") Convention on Contracts for the International Sale of Good ("CISG") offers the promise of harmonizing international sales law and facilitating international trade and global commerce. But there is a "homeward trend bias" that may encourage domestic courts to construe the gaps in the CISG broadly and fill them with non-uniform domestic legal rules. Questions about contract interpretation under the CISG raise the same concerns about a homeward trend bias as questions about the interpretation of express CISG provisions. The CISG has express provisions governing contract interpretation but their application may not provide an unambiguous interpretation. This …

A Comparative Study Of Party Autonomy And Its Limitations In International Contracts, Sarah Laval

Cardozo Journal of International and Comparative Law

No abstract provided.

Consumer Preferences For Performances Defaults, Franklin G. Snyder, Ann M. Mirabito

Faculty Scholarship

Commercial law in the United States is designed to facilitate private transactions, and thus to enforce the presumed intent of the parties, who generally are free to negotiate the terms they choose. But these contracts inevitably have gaps, both because the parties cannot anticipate every situation that might arise from their relationship, and because negotiation is not costless. When courts are faced with these gaps in a litigation context, they supply default terms to fill them. These defaults usually are set to reflect what courts believe similar parties would have agreed to if they had addressed the issue. These "majoritarian" …

The Convention On The Uniform Law Of International Bills Of Exchange And International Promissory Notes: A Comparison To The Uniform Commercial Code, Harold S. White

Georgia Journal of International & Comparative Law

No abstract provided.

Restitution Of Non-Gratuitously Conferred Benefit In Malaysia: A Case For Sowing The Unjust Enrichment Seed, Alvin W. L. See

Research Collection Yong Pung How School Of Law

This article draws on the common law of unjust enrichment to rationalize and develop the right to recover a non-gratuitously conferred benefit set out in section 71 of Malaysia’s Contracts Act 1950. This attempt at legal transplant and modern restatement is made in the hope of injecting principle and clarity into the antique section with the eventual goal of reviving it for practical and modern use.

Sex, Videos, And Insurance: How Gawker Could Have Avoided Financial Responsibility For The $140 Million Hulk Hogan Sex Tape Verdict, Christopher French

Faculty Scholarship

On March 18, 2016, and March 22, 2016, a jury awarded Terry Bollea (a.k.a Hulk Hogan) a total of $140 million in compensatory and punitive damages against Gawker Media for posting less than two minutes of a video of Hulk Hogan having sex with his best friend’s wife. The award was based upon a finding that Gawker intentionally had invaded Hulk Hogan’s privacy by posting the video online. The case has been receiving extensive media coverage because it is a tawdry tale involving a celebrity, betrayal, adultery, sex, and the First Amendment. The case likely will be remembered by most …

The Insurability Of Claims For Restitution, Christopher French

Faculty Scholarship

Does and should a wrongdoer’s liability insurance cover an aggrieved party’s claim for restitution (e.g., a claim for the disgorgement of ill-gotten gains)? This article answers those questions. It does so by first answering the question of whether claims for restitution are covered under the terms of liability insurance policies. Then, after concluding that they are, it addresses the question of whether claims for restitution should be insurable as a matter of public policy and insurance law theory. There are long-standing legal and equitable principles that, on the one hand, dictate that a wrongdoer should not be allowed to benefit …

Bitcoin And The Uniform Commercial Code, Jeanne L. Schroeder

Articles

Much of the discussion of bitcoin in the popular press has concentrated on its status as a currency. Putting aside a vocal minority of radical libertarians and anarchists, however, many bitcoin enthusiasts are concentrating on how its underlying technology – the blockchain – can be put to use for wide variety of uses. For example, economists at the Fed and other central banks have suggested that they should encourage the evolution of bitcoin’s blockchain protocol which might allow financial transactions to clear much efficiently than under our current systems. As such, it also holds out the possibility of becoming that …

Dismantling Democracy: Common Sense And The Contract Jurisprudence Of Frank Easterbrook, Deborah Post

Touro Law Review

No abstract provided.

Preface To The Gateway Thread, Deborah Post

Touro Law Review

No abstract provided.

Where's The Sense In Hill V. Gateway 2000?: Reflections On The Visible Hand Of Norm Creation, Shubha Ghosh

Touro Law Review

No abstract provided.

Cognition And Common Sense In Contract Law, Beverly Horsburgh, Andrew Cappel

Touro Law Review

No abstract provided.

Common Sense, Contracts, And Law And Literature: Why Lawyers Should Read Henry James, Lenora Ledwon

Touro Law Review

No abstract provided.

Of Contract, Culture, And The Code: Judge Easterbrook And The Cheyenne Indians, John M. Conley

Touro Law Review

No abstract provided.

Common Sense And Contract Law: Fear Of A Normative Planet?, Thomas Joo

Touro Law Review

No abstract provided.

On The Existential Function Of The Social And The Limits Of Rationalist Accounts Of Human Behavior, Doug Mcadam

Seattle University Law Review

Rational choice theory has achieved widespread influence in a number of social science disciplines, most notably economics and political science. Given its prominent position within economics, it is not surprising that rational choice theory (and other rationalist perspectives) dominates theory and research on the corporation and decision-making by corporate actors. By contrast, however, the theory has failed to gain more than a toehold in sociology. Indeed, most sociologists are downright hostile to rational choice theory. When pressed to explain why, those in the discipline are very likely to complain that the perspective is “asociological”; that the theory posits an atomized …