Contracts Commons^™

When Are Agreements Enforceable? Giving Consideration To Professor Barnett's Consent Theory Of Contract, James Maxeiner

All Faculty Scholarship

This address considers five points: (1) the place of theory in American contract law; (2) the basic elements of Professor Barnett's theory are; (3) how these elements are similar to Continental law; (4) what it says about the American legal world that Barnett's theory has been discussed without reference to Continental systems; and, finally, (5) why I believe the American model is not a good one for a future European Civil Code but also hope that such a Code will become law.

An Authors' Rights-Based Copyright Law: The Fairness And Morality Of French And American Law Compared, Jean-Luc Piotraut

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Good Faith Performance In Employment Contracts: A "Comparative Conversation" Between The Us And England, Katherine M. Apps

ExpressO

This paper asks two questions connected by the fact that they both stem from the inherent incompleteness of employment contracts: in American law, how can the terms in employment handbooks be variable, but sometimes only within reasonable procedurally fair circumstances; and in English law, why doesn’t the implied term of mutual trust and confidence in employment contracts fall foul of the strict test for implication of terms into contract? This paper finds the answer to both questions in the doctrine of good faith. An analysis of good faith as a “comparative conversation” between academic and judicial debates in the US …

“The (Cisg) Road Less Travelled”: Case Comment On Grecon Dimter Inc. V. J.R. Normand Inc., Antonin I. Pribetic

ExpressO

At first glance, the Supreme Court of Canada's recent decision in GreCon Dimter Inc. v. J.R. Normand Inc. appears to be a case upholding the primacy of international commercial arbitration, choice of forum and choice of law clauses. Upon closer scrutiny, however, the Supreme Court of Canada failed to consider the application of the UN Convention on Contracts for the International Sale of Goods (CISG) to the overall dispute. Interestingly, the same choice of forum and choice of law clauses were considered by the United States Court of Appeals a year earlier in GreCon Dimter, Incorporated v. Horner Flooring Company, …

Preparing For Cafta-Dr: The Need Of Commercial Law Reform In Central America, Omar E. Garcia-Bolivar

ExpressO

This article explores the policies, laws and institutions that may prevent Central American States from exploiting the opportunities provided by the CAFTA-DR. In that sense, we examine several of the legal factors that appear to be important in determining economic growth as they apply to the commercial legal conditions of Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Contracts Concluded By Electronic Agents - Comparative Analysis Of American And Polish Legal Systems, Aleksandra M. Jurewicz

ExpressO

This article analyzes the US and Polish law on contract formation by electronic agents. It persents the main similarities and differences in the approaches of common and civil legal systems. Finally, it discusses changes in legal theories in Poland that had to be made in order to comply with standards of electronic commerce.

The Comparative Law And Economics Of Pure Economic Loss, Francesco Parisi, Vernon Valentine Palmer, Mauro Bussani

George Mason University School of Law Working Papers Series

Law and economics shows that a key factor in determining the optimal economic loss rule is found in the relationship between pure economic loss and social loss. Economic loss should be compensable in torts only to the extent that it corresponds to a socially relevant loss. In this paper we undertake a comparative evaluation of the economic loss rule to verify whether modern legal systems, although not formally adopting the economic criterion, define the exclusionary rule in light of efficiency considerations. The comparative analysis reveals that the substantive applications of the economic loss rule in European jurisdictions are consistent with …

Unity And Pluralism In Contract Law, Nathan B. Oman

Faculty Publications

No abstract provided.

Contemplating A Civil Law Paradigm For A Future International Commercial Code, Wayne R. Barnes

Faculty Scholarship

The international community has worked toward a global law of contracts for the last century. These efforts include the Uniform Law on the International Sale of Goods, the Uniform Law on the Formation of Contracts for the International Sale of Goods, the UNIDROIT Principles of International Commercial Contracts, the Principles of European Contract Law, and the Vienna Convention for the International Sales of Goods (CISG). These texts are all tremendous achievements in their own right. However, they reflect a delicate juxtaposition of the two primary legal systems of the world --- the civil law and the common law. A consequence …

International Electronic Contracts: A Note On Argentine Choice Of Law Rules, Mario J. A. Oyarzábal

University of Miami Inter-American Law Review

No abstract provided.

Leaving Money On The Table: Contract Practice In A Low-Trust Environment, Ruben Kraiem

ExpressO

Social capital – the level of trust inherent in a society – will affect the contracting practices that are considered standard, practical or fair. These practices in turn will help determine the parties’ positions as they approach their negotiation, how they will communicate, and what terms they will agree in any particular transaction. This is true not only for the small transaction, but also for large and complex deals. As a result, when operating in a low-trust environment, even sophisticated parties (who can bear the costs of tailoring an agreement to their particular case), will be prone to relinquish or …

"Strangers In A Strange Land" -- Transnational Litigation, Foreign Judgment Recognition, And Enforcement In Ontario, Antonin I. Pribetic

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Lessons For The Hague: Internet Jurisdiction In Contract And Tort Cases In The European Community And The United States, 23 J. Marshall J. Computer & Info. L. 1 (2004), Moritz Keller

UIC John Marshall Journal of Information Technology & Privacy Law

With the increasing use of the Internet, all on-line users, web site owners, e-commerce companies and consumers alike, feel the need to be able to rely on clear standards for a potential contract or tort lawsuit following the Internet presence that could lead to multinational litigation. This goal could be achieved if the negotiations of the Hague Convention on international jurisdiction and enforcement of foreign judgments in civil and commercial matters succeed in harmonizing the rules of the different legal systems around the globe, or at least create a minimum standard for legal cases which would benefit greatly e-commerce and …

“All Aboard!” An Overview Of The Continuing Debate Regarding The Enforceability Of Dispute Resolution Provisions Of Filipino Seamen Employment Contracts, Richard V. Blystone

ExpressO

No abstract provided.

An Inquiry Into Several Difficult Problems In Enacting China's Uniform Contract Law, Wang Lliming, Keith Hand

Washington International Law Journal

Translator's Forward: In March of 1999, China's Ninth National People's Congress ("NPC") passed the Contract Law of People's Republic of China. The new law is the product of nearly six years of drafting work by China's Legislative Affairs Commission and contains over 400 articles, including 129 general contract provisions and 299 articles dealing with specific types of contracts. When the law takes effect on October 1, 1999, it will unify China's contract law by replacing the three principal contract statutes currently in force, the Economic Contract Law, the Foreign-related Economic Contract Law, and the Technology Contract Law. The passage of …

Microfinance And The Mechanics Of Solidarity Lending: Improving Access To Credit Throught Innovations In Contract Structure, Jameel Jaffer

Florida State University Journal of Transnational Law & Policy

No abstract provided.

The Legal Status Of Teachers: A Comparative Study Between The System In The United States And The System In Belgium., Hildegard Ann Schmidt

LLM Theses and Essays

The legal status of the teacher refers to his life both inside and outside the classroom. The most obvious part of his job is teaching, which consists of the passing of knowledge to his students. Yet before he enters the classroom, there are issues to be resolved. For instance, the nature of the employment contract must be determined. Since job security is a substantial matter, the teacher needs to know whether the employment contract is at will. If it is not an at-will contract, the reasons for dismissal should be clearly established. The teacher also will be concerned about the …

Comparative Law In Action: Promissory Estoppel, The Civil Law, And The Mixed Jurisdiction, David Snyder

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Privatautonomie Und Privatkodifikation – Zu Anwendbarkeit Und Geltung Allgemeiner Vertragsrechtsprinzipien, Ralf Michaels

Faculty Scholarship

No abstract provided.

Aspects Of The Uncitral Regimes For Procurement And For International Commercial Arbitration, And Government International Commercial Contracts In The Commonwealth Caribbean, Hugh A. Rawlins

Florida State University Journal of Transnational Law & Policy

No abstract provided.

International Jurisdiction In Products Liability Cases (Analysis Of Asahi And Post-Asahi Cases), Tsutomu Kuribayashi

LLM Theses and Essays

With the increase of foreign trade, there has also been an increase in the number of foreign manufacturers and distributors involved in product liability litigation in the United States. In many cases, the products from these foreign manufacturers and distributors reach the forum states through the stream of commerce, and are distributed to the customers by regional distributors, wholesalers, and retailers. Therefore, in many product liability cases where defective products from these foreign manufacturers and distributors cause injuries to people in the United States, those foreign companies do not have a direct relationship with the forum states. In these cases, …

The State As Landlord: The Constitutionality Of The Termination Of Public Housing Leases On Account Of A Tenant's Illegal Activities, Mark Anthony Drumbl

Scholarly Articles

Paragraph 107(l)(b) of the Ontario Landlord and Tenant Act enables landlords to evict tenants on short notice for engaging in illegal activity or for permitting such activity to be conducted in or on any part of the rental premises. Under this provision, the landlord can serve a notice of termination on the tenant, who may then exercise his/her right to dispute the landlord's allegation at a scheduled court hearing.

This paper suggests that paragraph 107(l)(b) is inconsistent with the underlying purposes of the Landlord and Tenant Act, and might run afoul of sections 7 and 15 of the Canadian Charter …

Sovereignty And Regionalism, Horacio A. Grigera Naón

Scholarly Articles in Law Reviews & Journals

No abstract provided.

As The World Turns: Revisiting Rudolf Schlesinger's Study Of The Uniform Commercial Code In The Light Of Comparative Law, Peter Winship

Faculty Journal Articles and Book Chapters

Problems of commercial law are apt to be similar or at least comparable in all commercial countries, so that in this field, perhaps more than in any other, foreign experience is likely to be instructive. As was said by a leading English scholar, "The value of comparative investigation of commercial law is so obvious as to make it unnecessary to labour the point."

Dirigisme And The Challenge Of Competition Law In France, David J. Gerber, Richard Azarnia

Cardozo Journal of International and Comparative Law

The article examines the tension between France's dirigiste traditions and the introduction of competition law, particularly through the 1986 Competition Statute. While the statute aimed to establish legal principles to protect competition and reduce government discretion, the enduring influence of dirigisme—emphasizing state control and administrative prerogatives—continues to challenge the effectiveness of competition law. The *Ville de Pamiers* case highlights this conflict, as it tests the boundaries of competition law's applicability to public services and administrative acts. The analysis reveals that the struggle to balance competition law with dirigiste traditions reflects broader conflicts in redefining the role of government in a …

Caught Between Rocks And Hard Places: The Plight Of Reinsurance Intermediaries Under U.S. And English Law, Stephen W. Schwab, Peter G. Gallanis, David E. Mendelsohn, Bradley V. Ritter

Michigan Journal of International Law

Accordingly, Part I of this article provides a review of the role intermediaries have played in the recent spate of insurance company insolvencies and an overview of intermediary rights and duties. Part II then progresses to a discussion of English intermediary law, analyzing how the general English rules apply to intermediaries when a cedent or reinsurer becomes insolvent. Part III addresses the same issues under U.S. law, tracing the most recent statutory developments from their cause and considering their effect on reinsurance transactions. This article concludes with a discussion of how English and U.S. law interact in reinsurance transactions, pointing …

Warranties Against Infringement In The Sale Of Goods: A Comparison Of U.C.C. § 2-312(3) And Article 42 Of The U.N. Convention On Contracts For The International Sale Of Goods, Joseph J. Schwerha Iv

Michigan Journal of International Law

Gone are the days of simple sales contracts. Today's corporate lawyers must have not only a substantial understanding of basic commercial law, but also of the related intellectual property law. Because of the shrinking global economy, such knowledge must rise to an international level.

Forum Selection And Choice Of Law Clauses In International Contracts: A United States Viewpoint With Particular Reference To Maritime Contracts And Bills Of Lading, Phillip A. Buhler

Articles, Book Chapters, & Popular Press

This Article approaches the topic of forum selection from a U.S. perspective. It is reasonable to expect, however, particularly with regard to bills of lading and maritime trade, that the approach of other nations toward international contracts is, or soon will be, very similar. For the sake of simplicity, "choice of law" and "choice of forum" will be addressed together, and referred to as either "choice of forum" or "forum selection." Many contracts only specify a particular forum, while others specify only the application of a particular law. U.S. courts and international conventions have generally taken the same approach to …

The Value Of Public-Notice Filing Under Uniform Commercial Code Article 9: A Comparison With The German Legal System Of Securities In Personal Property, Jens Hausmann

LLM Theses and Essays

In contrast to the public-notice filing system under U.C.C. Article 9, the modern German law of securities in personal property lacks publicity of security interests. The German courts have developed a mesh of priority rules exhaustively described in this analysis. Despite the costs and risks arising under the formal filing system, the U.C.C. accomplishes a preferable balance of interests involved in secured transactions. It assures certainty to creditors about the priority of security interests in particular assets, whereas the German law comprehensively recognizes the debtor’s interest in the secrecy of the transaction and the need for external capital. Regarding the …