Contracts Commons^™

A Slave's Marriage: Dowry Or Deposit, Alan Watson

Scholarly Works

This articles examines the concept of dowry among marriage of slaves in ancient Rome.

Immunity From Regulatory Price Squeeze Claims: From Keogh, Parker, And Noerr To Town Of Concord And Beyond, Keith A. Rowley

Scholarly Works

On September 21, 1990, the First Circuit handed down its decision in Town of Concord, Massachusetts v. Boston Edison Co. This case, the most recent in a growing line of court of appeals decisions examining the antitrust implications of public utility rate structures, represents the first time a United States court of appeals has unequivocally stated that an antitrust action based upon a “price squeeze” could not be maintained against a utility whose wholesale and retail rates were both fully regulated. Town of Concord notwithstanding, the courts are far from agreeing whether investor-owned electric or natural gas utilities are immune …

A Better Approach To Arbitrability, Jeffrey W. Stempel

Scholarly Works

Historically, Anglo-American courts refused to enforce arbitration agreements, jealously guarding their dispute resolution monopoly. During the early twentieth century, merchants and attorneys began seeking legislation requiring courts to defer to arbitration. The United States Abitration Act took effect January 1, 1926 and has remained essentially unchanged. It was written with the implicit assumption that it would be invoked by commercial actors having relatively equal bargaining power and emotive appeal to a jury. The Act says nothing to direct the court's inquiry concerning the quality of either party's assent to the arbitration clause other than requiring a written arbitration agreement and …

Pitfalls Of Public Policy: The Case Of Arbitration Agreements, Jeffrey W. Stempel

Scholarly Works

As the juxtaposition of these quotations suggests, judges have long held disparate views on the legitimacy and value of “public policy” considerations as a basis for legal decision making. The popular notion posits that Justice Holmes and legal realists carried the day, making public policy analysis an ordinary part of the adjudication process. The story, of course, is more complex than this legal version of Don Quixote. Many judges and lawyers, including Justice Holmes in other writings, continued to speak of adjudication in more formalist and positivist terms, with most laypersons in apparent agreement. Judge Burroughs' view of public policy …

Binding Contracts In Georgia Local Government Law: Configurations Of Codification, R. Perry Sentell Jr.

Scholarly Works

The potential for creating uncertainty looms as a primary and ever-present problem in the codification process. A dominant concern is the fear the unintended statutory changes--or, worse still, the quandary of whether what appears to be such a change was truly intended--may result. The perplexing issues emanating from that quandary can considerably dissipate the benefits of progressive statutory codification. For purely illustrative purposes, attention might be called to the present plight of an historic precept in Georgia local government law. That precept unflinchingly condemns a local governing authority's efforts to commit its successors to a given course of governmental action. …

Testamentary Substitutes: Retained Interests, Custodial Accounts And Contractual Transactions—A New Approach, Sidney Kwestel, Rena C. Seplowitz

Scholarly Works

No abstract provided.

Testamentary Substitutes—A Time For Statutory Clarification, Sidney Kwestel, Rena C. Seplowitz

Scholarly Works

No abstract provided.

A New And Old Theory For Adjudicating Standardized Contracts, Eric Mills Holmes, Dagmar Thurmann

Scholarly Works

The purpose of this article is rather simple, extracting a new theory of standard form contracts from the good bits of the spectrum of "old" ideas and combining them with some fresh rethinking. For something fresh, the authors choose to examine the German law on standard form contracts. The authors have tried to remain neutral observers but in extracting the best from the spectrum of ideas one necessarily states--in this instance, one of pragmatic compromise. Thus, this article will cull and identify elements from the spectrum specifically concerning standard form contracts and compare them with the German approach. This process …

The Evolution Of Law: The Roman System Of Contracts, Alan Watson

Scholarly Works

I have two aims in producing this paper. First, I wish to contribute to the general understanding of how and why law develops and explain the evolution of some very familiar legal institutions. Second, I wish to add to our knowledge of the history of Roman law, by producing a radically different view of the development of contracts, that is, I believe, both consistent with surviving textual data and plausible with regard to human behavior.

Landlord's Remedies When The Tenant Abandons: Property, Contract, And Leases, Sarajane N. Love

Scholarly Works

Because the current remedial scheme represents a blend of property and contract Law, an adequate assessment requires delving into the property framework that existed before its revamping by contract. In part II, therefore, the focus will be on the remedial options traditionally associated with property law.... Part III will examine the significant contract doctrines in this area of the law -- breach by anticipatory repudiation and the avoidable consequences rule. An important concern is whether the contract and property rules have been or can be melded together in an overall remedial scheme that is conceptually understandable and practically consistent in …

Wanted: A Strict Contractual Approach To The Private University/Student Relationship, Rebecca H. White

Scholarly Works

Institutions of higher education command and receive considerable respect in our society. An apparent corollary of this revered status is the deference accorded colleges and universities by the courts. This deferential attitude is brought into sharp focus when a contractual dispute arises between a private university and one of its students.

It is well settled that the private university/student relationship is contractual in nature. Educational contracts, however, are regarded as possessing unique features that require special consideration; a construction which preserves schools' broad discretionary powers is often viewed as essential. Thus, courts have refused to invoke a strict contractual approach …

"Just Sign Here--It's Only A Formality": Parol Evidence In The Law Of Commercial Paper, Ellen R. Jordan

Scholarly Works

Part I will argue that certainty is especially important in the law of negotiable instruments, although it does not outweigh all other values. In light of the need for certain rules, this Article will consider the policy choices made by the drafters of the Uniform Commercial Code's Article 3 on Commercial Paper with respect to parol evidence. Part II will examine certain parol evidence that is admissible against even the law's most favored plaintiff, the holder in due course. Part III will focus on the Code's indirect treatment of the most troublesome parol evidence problems, those which arise when the …

The Impact Of The Federal Eft Act On Customer Contracts In New York State, Harold I. Abramson, Jay Martin

Scholarly Works

No abstract provided.

Local Government And Contracts That Bind, R. Perry Sentell Jr.

Scholarly Works

To paraphrase a modern slogan, in local government law "little goes right if the contract's too tight." For the layman who bargains in good faith with a municipality or county, the introduction to this principle can be a jolt. TO be told that his contract was not a contract, because it would have unduly bound the local government, must prompt serious doubts in his mind about the law commanding this result. To be told that he is legally presumed to know this must confirm his suspicions. But the principle is a well-established one, existing in most jurisdictions from early times. …