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Articles 181 - 210 of 1067

Full-Text Articles in Contracts

The Role Of Letters Of Credit In Payment Transactions, Ronald J. Mann Jan 2000

The Role Of Letters Of Credit In Payment Transactions, Ronald J. Mann

Michigan Law Review

Common justifications for the use of the letter of credit fail to explain its widespread use. The classic explanation claims that the letter of credit provides an effective assurance of payment from a financially responsible third party. In that story, the seller - a Taiwanese clothing manufacturer, for example - fears that the overseas buyer - Wal-Mart - will refuse to pay once the goods have been shipped. Cross-border transactions magnify the concern, because the difficulties of litigating in a distant forum will hinder the manufacturer's efforts to force the distant buyer to pay. The manufacturer-seller solves that problem by …

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Letters Of Credit As Signals: Comments On Ronald Mann's 'The Role Of Letters Of Credit In Payment Transactions', Clayton P. Gillette Jan 2000

Letters Of Credit As Signals: Comments On Ronald Mann's 'The Role Of Letters Of Credit In Payment Transactions', Clayton P. Gillette

Michigan Law Review

Why would buyers and sellers transact with each other through a third party that charges a significant fee for its services and that typically is authorized to make payment notwithstanding noncompliance with the very prerequisites that it has been engaged to monitor? This is the puzzle that Ronald Mann's provocative and nuanced article purports to explain. Under the traditional story about the esoteric world of letters of credit, these transactions allow distant buyers and sellers to circumvent obstacles that would otherwise frustrate long-distance transactions. The traditional story explains that these credits induce buyers to approve payment prior to receiving conforming …

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Reconciling The Old Theory And The New Evidence: Comments On Ronald Mann's 'The Role Of Letters Of Credit In Payment Transactions', Jacob I. Corré Jan 2000

Reconciling The Old Theory And The New Evidence: Comments On Ronald Mann's 'The Role Of Letters Of Credit In Payment Transactions', Jacob I. Corré

Michigan Law Review

Ronald Mann's thorough research and rigorous analysis provide compelling evidence that the commercial letter of credit does not further the fundamental purpose traditionally associated with it. Equally persuasive are his hypotheses about the functions that letters of credit actually serve in the real world. The objective statistics are startling. An overwhelming majority of letter of credit seller-beneficiaries make at least initial presentations to issuing or correspondent banks that by the express terms of the letter of credit do not entitle the seller to payment. Without a waiver from its customer, the issuing bank is legally entitled to, and surely will …

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Informality As A Bilateral Assurance Mechanism: Comments On Ronald Mann's 'The Role Of Letters Of Credit In Payment Transactions', Avery Wiener Katz Jan 2000

Informality As A Bilateral Assurance Mechanism: Comments On Ronald Mann's 'The Role Of Letters Of Credit In Payment Transactions', Avery Wiener Katz

Michigan Law Review

Ronald Mann's study of documentary defects in the presentation of commercial letters of credit is a valuable contribution to the commercial law literature in at least three respects. First, it offers a detailed and thorough empirical survey of an important though specialized aspect of commercial practice. Mann collected and coded a data sample of 500 randomly selected letter-of-credit transactions, personally evaluating each transaction to determine whether the documentary presentation by the beneficiary of the letter of credit (i.e., the seller) complied with the letter's formal terms. Then, for each case in which he found one or more documentary defects, Mann …

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Empirical Insight And Some Thoughts On Future(S) Investigation: Comments On Mark West's 'Private Ordering At The World's First Futures Exchange', A.W. Brian Simpson Jan 2000

Empirical Insight And Some Thoughts On Future(S) Investigation: Comments On Mark West's 'Private Ordering At The World's First Futures Exchange', A.W. Brian Simpson

Michigan Law Review

Some considerable number of years ago, when I was in Chicago, I had a plan to undertake a general study of the origins of futures markets. They fascinated me for a variety of reasons, one being their bizarre nature: traders meeting together, usually in some form of ring, in order to sell, on a huge scale, quantities of commodities which they neither possess, nor intend to possess, to other traders, who have not the least wish to receive such commodities, and nowhere to put them if they did. At first sight it appears a weird perversion of the institution of …

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A Public Choice Approach To Private Ordering: Rent-Seeking At The World's First Futures Exchange: Comments On Mark West's 'Private Ordering At The World's First Futures Exchange', Omri Yadlin Jan 2000

A Public Choice Approach To Private Ordering: Rent-Seeking At The World's First Futures Exchange: Comments On Mark West's 'Private Ordering At The World's First Futures Exchange', Omri Yadlin

Michigan Law Review

The literature on private ordering systems has expanded exponentially over the last decade. Yet, very few scholars have actually attempted to define the term "private ordering" - a failure that sometimes leads to confusion. Some scholars identify private ordering with non-state ordering. According to this view, the private legal systems Robert Ellickson, Lisa Bernstein, McMillan & Woodruff, Mark West, and others have investigated are "private" simply because their norms are not manufactured or enforced by the state. The alternative view emphasizes the decentralized feature of private ordering systems. Robert Ellickson, for example, studied "how people manage to interact to mutual …

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Exploring The Battle Of The Forms In Action, Daniel Keating Jan 2000

Exploring The Battle Of The Forms In Action, Daniel Keating

Michigan Law Review

Like many commercial law professors, I have long been fascinated with the workings of the Uniform Commercial Code's section 2-207, the "battle of the forms" provision. There are two features of that section, one internal and one external, that make it such an intriguing statute to ponder. The internal source of fascination with section 2-207 is that it provides a classic model for teaching students about the intricacies of statutory construction. There is probably no other provision within U.C.C. Article 2 that provides more confusion to law students and more challenge to the instructor than does section 2-207. There is …

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Commercial Norms And The Fine Art Of The Small Con: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Douglas G. Baird Jan 2000

Commercial Norms And The Fine Art Of The Small Con: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Douglas G. Baird

Michigan Law Review

The standard battle-of-the-forms story, often rehearsed in the classroom, is one in which merchants try to take advantage of their contracting opposites. A seller wants to escape the obligations that come with implied terms and seeks to disclaim them in its acknowledgment form. Its buyers do not realize they have been had until after the goods fail. Only then do they read the seller's form and discover that they are without remedy. Conspicuously absent in Dan Keating's fine article, however, is any evidence that supports this story. Some of his merchants talk about putting favorable terms in their forms, but …

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The Sound Of One Form Battling: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Richard Craswell Jan 2000

The Sound Of One Form Battling: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Richard Craswell

Michigan Law Review

Daniel Keating has provided a thoughtful and useful study of the way that businesses form contracts. In particular, he has given us a good deal of data concerning the problem known as the "battle of the forms." Commercial lawyers have, of course, been wrangling over this problem for decades, so it is no small accomplishment to be able to offer a useful contribution. In Part I below, I describe more precisely just what Keating's data does and does not illuminate. Parts II and III then focus on a particular contracting practice that Keating has identified: the practice of getting both …

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The Limits Of Empiricism: What Facts Tell Us: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Dennis Patterson Jan 2000

The Limits Of Empiricism: What Facts Tell Us: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Dennis Patterson

Michigan Law Review

The conventional legal academic wisdom about empiricism is that empirical information is by-and-large a good thing, that we need more of it, and that empirical analysis is preferable to many scholarly alternatives now on offer in the law review literature. I do not dispute the proposition that, all things considered, empirical information is a good thing. What I question is the notion that empirical information necessarily leads to knowledge. Put differently, it is one thing to marshal the facts, and another to know what to make of the facts. I shall raise these points both in a general way and …

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On The Use Of Practitioner Surveys In Commercial Law Research: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Avery Wiener Katz Jan 2000

On The Use Of Practitioner Surveys In Commercial Law Research: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Avery Wiener Katz

Michigan Law Review

As Daniel Keating's principal article attests, the literature on U.C.C. section 2-207 and the "battle of the forms" is both vast and intricate. 1 That fact, together with the distinguished array of commentators assembled here, makes it unlikely that I will be able to say anything substantially original on that subject. Accordingly, in the spirit of this overall symposium, I will focus the bulk of my remarks not on the substantive issues raised by Keating's article, but on his methodology. In particular, I will suggest that Keating's empirical method - the free-form, oral interview conducted personally by the principal researcher …

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Presidential Address: Contract Reading Revisited, Theodore J. St. Antoine Jan 2000

Presidential Address: Contract Reading Revisited, Theodore J. St. Antoine

Book Chapters

A quarter century ago, in a presentation at the Academy’s annual meeting, I used the phrase “contract reader” to characterize the role an arbitrator plays in construing a collective bargaining agreement. That two-word phrase may be the only thing I ever said before this body which has been remembered. Unfortunately, it is almost invariably misunderstood. Time and again members have reproached me: “What’s the big deal about contract reading, anyway? Isn’t it just the same as contract interpretation?” Or, more substantively scathing: “Do you really think, Ted, that all you have to do to interpret a labor agreement is to …

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The Rise Of America's Two National Pastimes: Baseball And The Law, Cleta Deatherage Mitchell May 1999

The Rise Of America's Two National Pastimes: Baseball And The Law, Cleta Deatherage Mitchell

Michigan Law Review

Mark McGwire's seventieth home run ball sold at auction in January of this year for $3,005,000. In late 1998, Baltimore Orioles owner Peter Angelos sued a former Orioles manager and his daughter in the circuit court of Cook County, Illinois. Angelos alleged that the original lineup card from the 1995 game when Cal Ripken, Jr., broke Lou Gehrig's consecutive game record belongs to the Orioles, not to the former manager and certainly not to his daughter. There may be no crying in baseball, but there is money. And wherever earthly treasure gathers two or more, a legal system arises. From …

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The Tentative Case Against Flexibility In Commercial Law, Omri Ben-Shahar Jan 1999

The Tentative Case Against Flexibility In Commercial Law, Omri Ben-Shahar

Articles

Well-rooted in modern commercial law is the idea that the law and the obligations that it enforces should reflect the empirical reality of the relationship between the contracting parties. The Uniform Commercial Code ("Code") champions this tradition by viewing the performance practices formed among the parties throughout their interaction as a primary source for interpreting and supplementing their explicit contracts. The generous recognition of waiver and modifications, as well as the binding force the Code accords to course of performance, course of dealings, and customary trade usages, effectively permits unwritten commercial practices to vary and to erode explicit contractual provisions.

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Private Ordering At The World's First Futures Exchange, Mark D. West Jan 1999

Private Ordering At The World's First Futures Exchange, Mark D. West

Michigan Law Review

Modern derivative securities - financial instruments whose value is linked to or "derived" from some other asset - are often sophisticated, complex, and subject to a variety of rules and regulations. The same is true of the derivative instruments traded at the world's first organized futures exchange, the Dojima Rice Exchange in Osaka, Japan, where trade flourished for nearly 300 years, from the late seventeenth century until shortly before World War II. This Article analyzes Dojima's organization, efficiency, and amalgam of legal and extralegal rules. In doing so, it contributes to a growing body of literature on commercial self-regulation while …

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Lawyers, Law, And Contract Formation: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Robert K. Rasumssen Jan 1999

Lawyers, Law, And Contract Formation: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Robert K. Rasumssen

Michigan Law Review

Attempting to infuse the austerity of theory with a dose of reality, an intrepid group of legal scholars has left the security of the office and ventured into the work-a-day world of commercial practices. The information that they have gathered and are sharing with the rest of us is furthering our understanding of the interaction between commercial law and commercial practice. Embedded in much of the research they have generated is the not-so-flattering conclusion that law professors suffer from a self-serving bias. Those of us in the academy engage in the assumption, often unstated or even unacknowledged, that the law …

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The Richness Of Contract Theory, Randy E. Barnett Jan 1999

The Richness Of Contract Theory, Randy E. Barnett

Michigan Law Review

When I teach the doctrine of good faith performance, I assign an exchange between two distinguished contracts scholars, Robert Summers and Steven Burton, that has come to be known as the "Summers-Burton" debate. This debate is interesting not only for the contrasting views of its protagonists concerning the doctrine of good faith, but also because of the generational shift in modes of scholarship it represents. In the 1950s and 1960s, contracts scholars, like so many others, rejected so-called "conceptualist" or "formalist" approaches that attempted to dictate the outcome of cases with general concepts and rules. Contracts scholarship was dominated by …

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Law, Literature, And Contract: An Essay In Realism, Blake D. Morant Jan 1998

Law, Literature, And Contract: An Essay In Realism, Blake D. Morant

Michigan Journal of Race and Law

In this Essay, the Author examines contract doctrine's weaknesses as applied to issues of race and gender. By contrasting the doctrinal silence concerning these issues with facts and circumstances that may have influenced the results in specific cases, the Author challenges classical contract theory's assertion of objectivity and its associated assumption of bargaining equality as an integral component of each contract. The Author then uses literature as an illustrative tool to highlight contract law's failings in contexts where bargaining disparities related to race and gender issues are present. This approach is not meant to eliminate contract rules but rather to …

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Freeing The Tortious Soul Of Express Warranty Law, James J. White Jan 1998

Freeing The Tortious Soul Of Express Warranty Law, James J. White

Articles

I suspect that most American lawyers and law students regard express warranty as neither more nor less than a term in a contract, a term that is subject to conventional contract rules on formation, interpretation, and remedy. Assume, for example, that a buyer sends a purchase order to a seller and the purchase order specifies the delivery of 300 tons of "prime Thomas cold rolled steel." The acknowledgment also describes the goods to be sold as "prime Thomas cold rolled steel." Every American lawyer would agree that there is a contract to deliver such steel and furthermore would conclude that …

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Article 5 - Recent Developments, James J. White Jan 1997

Article 5 - Recent Developments, James J. White

Other Publications

I. Mitigation in Letter of Credit Transactions Assume a Buyer has procured a letter of credit to pay for contracted goods but no longer wants the goods. The Buyer and the Issuer would like to force the Beneficiary to mitigate. Assume that both the Issuer and Applicant repudiate their obligation or that the Applicant has failed and the Issuer repudiates its obligation to pay under the letter of credit. At the moment of repudiation the price for a gallon of the underlying oil that is the subject of the letter of credit is $.75 and that the letter of credit …

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Form Contracts Under Revised Article 2 (Symposium: Consumer Protection And The Uniform Commercial Code), James J. White Jan 1997

Form Contracts Under Revised Article 2 (Symposium: Consumer Protection And The Uniform Commercial Code), James J. White

Articles

The current draft of section 2-206 in Revised Article 2 of the Uniform Commercial Code ("UCC") entitled "Consumer Contract: Standard Form"1 presents a unique and threatening challenge to the drafters of consumer form contracts. In earlier drafts, one part of the section applied to both to commercial contracts and consumer contracts. It required that "one manifest assent" to any form contract, commercial or consumer, in order for it to be binding.2 Bowing to commercial opposition in the most recent version, the drafters have omitted all reference to commercial contracts. As the section stands, it applies only to consumer contracts.

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Moving From Colonias To Comunidades: A Proposal For New Mexico To Revisit The Installment Land Contract Debate, Elizabeth M. Provencio Jan 1997

Moving From Colonias To Comunidades: A Proposal For New Mexico To Revisit The Installment Land Contract Debate, Elizabeth M. Provencio

Michigan Journal of Race and Law

Communities of Mexican Americans in the Southwest, known as colonias, have provided many low-income buyers with affordable opportunities. Affordability, however, comes at a high price for the colonias residents. Most of the buyers live in colonias pursuant to installment land contracts, devices which allow buyers to spread the purchase price of property over a number of years but leave them without legal title or equity under New Mexico law. The buyers sacrifice their legal rights to "own" small, unimproved lots of land in developments that are often without electricity, gas, a sewage system, and indoor plumbing. The author argues …

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Antitrust Balancing In A (Near) Coasean World: The Case Of Franchise Tying Contracts, Alan J. Meese Oct 1996

Antitrust Balancing In A (Near) Coasean World: The Case Of Franchise Tying Contracts, Alan J. Meese

Michigan Law Review

Antitrust law has largely succumbed to the hegemony of balancing. Courts applying the rule of reason are told to balance a restraint's procompetitive effects against its anticompetitive impact. Mergers once deemed anticompetitive solely because they facilitated the exercise of market power are now evaluated by weighing the anticompetitive effects of such increased power against any efficiencies created by the transaction. Finally, some activities once deemed per se illegal are now subject to a balancing approach, either by explicit application of the rule of reason, or by recognition of certain affirmative defenses to otherwise per se violations. Unlike many other balancing …

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Too Many Theories, Todd D. Rakoff May 1996

Too Many Theories, Todd D. Rakoff

Michigan Law Review

A Review of Michael J. Trebilcock, The Limits of Freedom of Contract

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The Intersection Of Articles 2 And 9, Steven L. Harris, James J. White Jan 1996

The Intersection Of Articles 2 And 9, Steven L. Harris, James J. White

Other Publications

I. Standard Form Contracts II. Buyer in Ordinary Course; Prepaying Buyer III. Consignments IV. Seller's Right to Reclaim Delivered Goods

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Globalisation Of Contract Law: Rules For Commercial Contracts In The 21st Century, Whitmore Gray Jan 1996

Globalisation Of Contract Law: Rules For Commercial Contracts In The 21st Century, Whitmore Gray

Articles

This is a paper given at the Asia-Pacific Lawyers Association meeting held in Bangkok in November 1995. The author describes the principles of international commercial contracts published in 1994 by the International Institute for the Unification of Private Law. Professor Gray sees a new era of harmonisation of contract law. An appendix gives an abstract of a contract law decision given by an Austrian Court in 1994.

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Tax Transitions, Opportunistic Retroactivity, And The Benefits Of Government Precommitment, Kyle D. Logue Jan 1996

Tax Transitions, Opportunistic Retroactivity, And The Benefits Of Government Precommitment, Kyle D. Logue

Articles

What if the current federal income tax laws were repealed and replaced with a simple flat tax? What if the entire Internal Revenue Code (with its graduated rates and countless deductions, exclusions, and credits) were scuttled in favor of a broad-based consumption tax? Only a few years ago, such proposals would have seemed radical and extremely unlikely to be adopted. But times are changing. Calls for a drastic overhaul of the Internal Revenue Code have become commonplace, even at the highest levels in the tax-policy community. In addition, proposals that would replace the income tax with a flat-rate broad-based consumption …

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Gas Sale Contracts Under The Uniform Commercial Code, James J. White Jan 1996

Gas Sale Contracts Under The Uniform Commercial Code, James J. White

Book Chapters

In the last decade, many oil and gas lawyers have learned more than they wish to know about the Uniform Commercial Code (U.C.C.). Like it or not, Article 2 of the U.C.C. governs most contracts for the sale of natural gas. Section 2-107(1) draws a distinct line between leases, deeds, and other conveyances of minerals in place, on the one hand, and the sale of the minerals by the miner or producer after the minerals have been severed, on the other. The consequence of this rule is that Article 2 has little or nothing to say about the sale of …

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The Federal Arbitration Act And Individual Employment Contracts: A Better Means To An Equally Just End, William F. Kolakowski Iii Jun 1995

The Federal Arbitration Act And Individual Employment Contracts: A Better Means To An Equally Just End, William F. Kolakowski Iii

Michigan Law Review

This Note argues that courts should adopt a narrow reading of the employment contract exception to the FAA, thus making arbitration agreements in most individual employment contracts enforceable under the Act. Part I argues that a textual analysis of the FAA supports a narrow interpretation of the exception. Because some courts and commentators have argued that the text favors a broad interpretation, Part II examines the legislative history of the exception and demonstrates that no firm conclusions can be drawn about congressional intent regarding the exception's scope. Finally, Part III demonstrates that a narrow reading of the exception best serves …

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Intellectual Property And The Costs Of Commercial Exchange: A Review Essay, Robert P. Merges May 1995

Intellectual Property And The Costs Of Commercial Exchange: A Review Essay, Robert P. Merges

Michigan Law Review

A Review of The Commercial Law of Intellectual Property by Peter A. Alces and Harold F. See

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