Contracts Commons^™

Tortious Interference And The Law Of Contract: The Case For Specific Performance Revisited, Deepa Varadarajan

Faculty Publications By Year

No abstract provided.

Trade Secrets, Non-Competes, And Unfair Competition, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the conference on Trade Secrets, Non-Competes, and Unfair Competition held by UK/CLE in October 2001.

The Influence Of Marvin V. Marvin On Housework During Marriage, Margaret F. Brinig

Journal Articles

When Michelle Marvin was forced to leave the home she shared with what today we would call her partner, Lee Marvin, she had a number of problems. The first ones, of course, were legal: she had no marriage with Lee and no written contract that could distinguish their relationship from "mere cohabitation." Nor had she contributed directly to his career or other assets. What she alleged was his express promise to "take care of her" (for some time period that was not altogether clear) and, less obviously, a promise implied by all she had done with and for him during …

Contract Reconceived, Peter A. Alces

Faculty Publications

No abstract provided.

Restitution And Equity: An Analysis Of The Principle Of Unjust Enrichment, Emily Sherwin

Cornell Law Faculty Publications

No abstract provided.

3rd Annual Computer & Technology Law Institute, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the 3rd Annual Computer & Technology Law Institute held by UK/CLE in March 2001.

When Do Rights Arise Under The Contracts (Rights Of Third Parties) Act 1999 (Uk)?, Tiong Min Yeo

Research Collection Yong Pung How School Of Law

There are two aspects to the common law doctrine of privity of contract. The first, that a contract cannot impose liabilities on a third party, is not very controversial. The second, that in general a contract can only confer rights on parties to the contract even if it is clearly the intention of the contracting parties to benefit a third party, is highly controversial, and has been the subject of much judicial criticism.

Payment Methods For Consumer-To-Consumer Online Transactions, 35 Akron L. Rev. 1 (2001), David E. Sorkin

UIC Law Open Access Faculty Scholarship

No abstract provided.

Downtown Code: A History Of The Uniform Commercial Code 1949-1954, 49 Buff. L. Rev. 359 (2001), Allen R. Kamp

UIC Law Open Access Faculty Scholarship

No abstract provided.

Quantum Meruit For The Subcontractor: Has Restitution Jumped Off Dawson's Dock?, Doug Rendleman

Scholarly Articles

No abstract provided.

Reinventing The Deal: A Sequential Approach To Analyzing Claims For Enforcement Of Modified Sales Contracts, Irma S. Russell

Faculty Law Review Articles

This article considers whether providing additional content to the concept of good faith in the area of contract modification is possible or desirable. The article explores the modification puzzle and the issues of erratic justice that result from the nebulous nature of the UCC test, and evaluates an alternative test (the sequential approach) that scrutinizes each step of the modification process and imports the standard of reasonable grounds into this context.

Part II discusses terminology and fundamental concepts in this area of law, including the reasons for seeking a modification, the steps of a modification, and the typical defense to …

Placid, Clear-Seeming Words: Some Realism About The New Formalism (With Particular Attention To Promissory Estoppel), Sidney Delong

Faculty Articles

This Article examines the recent doctrinal shift from realist jurisprudence to the “new formalism” as it arises in the creation of contract obligation. Many recent decisions involving promissory estoppel appear to display a trend away from reliance protection in the commercial world. While these decisions are formalist insofar as they favor textual forms over contextual forms, the Author argues that this trend is more properly characterized as a realist effort. This Article examines promissory estoppel in the commercial world and suggests that the “new formalism”, driven by the most “realist” of motives, will expunge liability for promissory estoppel in the …

Contracting With Electronic Agents, Anthony J. Bellia

Journal Articles

Established contract doctrine provides no clear answer to the question whether exchanges arranged by the interaction of electronic agents are enforceable. This Article explores whether the law should enforce exchanges arranged by the interaction of electronic agents. It examine how normative theories of contractual obligation inform the issue, with an eye toward the strengths and weaknesses of each theory. The theories that most strongly support the enforcement of exchanges arranged by electronic agents, this Article explains, are those that ground contractual obligation in protecting the ability of individuals to pursue their reasonable objectives through reliable arrangements.

Is Article 2 The Best We Can Do?, Robert E. Scott

Faculty Scholarship

You will all be happy to know that, haying listened to my colleagues for the last three hours, I have completely forgotten what I was planning to say. But I haven't forgotten why I am here. I am the proverbial skunk at the garden party, and I hope to fulfill my role as the only skeptic in the group. I must tell you candidly, however, that I agree with everything Gail Hillebrand had to say. That doesn't mean she is going to agree with anything that I have to say, but perhaps there are two skeptics here this afternoon.

My …

Precontractual Reliance, Lucian A. Bebchuk, Omri Ben-Shahar

Articles

During contractual negotiations, parties often make reliance expenditures that would increase the surplus should a contract be made. This paper analyzes decisions to invest in precontractual reliance under alternative legal regimes. Investments in reliance will be socially suboptimal in the absence of any precontractual liability-and will be socially excessive under strict liability for all reliance expenditures. Given the results for these polar cases, we focus on exploring how "intermediate"-liability rules could be best designed to induce efficient reliance decisions. One of our results indicates that the case for liability is shown to be stronger when a party retracts from terms …

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance Law in the years 2000 and 2001.

The Uniform Computer Information Transactions Act: A Well Built Fence Or Barbed Wire Around The Intellectual Commons, Warigia M. Bowman

Articles, Chapters in Books and Other Contributions to Scholarly Works

The Uniform Computer Information Transactions Act (UCITA) is a proposed state contract law developed to regulate transactions in intangible goods such as computer software, online databases and other digital products.' UCITA was intended to act as Article 2B of the Uniform Commercial Code (UCC). Article 2 comprises the law governing commercial transactions in the sale of goods and ensures consistent contract laws from state to state. The stated goal of UCITA is to provide clarity regarding computer information transactions.

Comparing The General Good Faith Provisions Of The Pecl And The Ucc: Appearance And Reality, Harry Flechtner

Articles

"Good faith" is a notoriously amorphous and variable concept. Thus it is the interpretation and application of the concept that provides the most important points of comparison for the good faith provisions of the Principles of European Contract Law ("PECL") and the Uniform Commercial Code ("UCC") . The UCC has been in force since the 1950's, and its good faith provisions have been applied in hundreds of cases. In contrast, the PECL is a new phenomenon and its good faith rules have not been applied to actual cases. The comment to PECL Article 1:201, however, includes five concrete illustrations of …

The Property/Contract Interface, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

This Article explores the distinction between in personam contract rights and in rem property rights. It presents a functional explanation for why the legal system utilizes these two modalities of rights, grounded in the pattern of information costs associated with each modality. To test this theory, the Article examines four legal institutions that fall along the property/contract interface – bailments, landlord-tenant law, security interests, and trusts – in order to determine how the legal doctrine varies as the underlying situation shifts from in personam, to in rem, to certain relations intermediate between these poles. With respect to each institution, we …

The Wharf (Holdings) Ltd. V. United International Holdings, Inc.: The Supreme Court Breaks Old Ground, Mark J. Loewenstein

Publications

This article analyzes the Supreme Court's decision to decide only one federal securities law case, The Wharf (Holdings) Ltd. v. United International Holdings, Inc. On the face of it, the Court simply affirmed long-standing, uncontroversial tenets of Rule 10b-5. However, the article provides different explanations to the Court's decision.

An Inconsistently Sensitive Mind: Richard Posner's Celebration Of Insurance Law And Continuing Blind Spots Of Econominalism, Jeffrey W. Stempel

Scholarly Works

Seventh Circuit Judge Richard Posner is well known for bringing economic analysis to bear on a host of issues, including infamously controversial notions such the market for baby sale. Not surprisingly, Posner's insurance law opinions reflect economics, but perhaps not to the degree one would expect. A review of Posner's 20 years of opinions relating to insurance issues reviews his pragmatic jurisprudence as well. Decisions frequently reflect not only economics but also situational context and considerations of business reality as well as a sophisticated grasp of basic insurance doctrine and contract law. As a general matter, Posner also displays considerably …

A Brief History Of Anticipatory Repudiation In American Contract Law, Keith A. Rowley

Scholarly Works

This article traces the evolution of the doctrine of anticipatory repudiation from its foundations laid years before the landmark case of Hochster v. De la Tour, 118 Eng. Rep. 922 (Q.B. 1853), through Hochster, its growing acceptance by American courts in the late-1800s and early-1900s, its canonization in the first Restatement of Contracts (despite the Restatement's principal Reporter's personal objections to the doctrine), its codification in the Uniform Commercial Code, its standardization in the Restatement (Second) of Contracts, and its inclusion in the U.N. Convention on Contracts for the International Sale of Goods. This article devotes considerable attention not only …

Doctors, Hmos, Erisa, And The Public Interest After Pegram V. Herdrich, Jeffrey W. Stempel, Nadia Von Magdenko

Scholarly Works

The Employee Retirement Income Security Act of 1974 was enacted in the wake of highly publicized pension disasters in order to protect employee pension rights. Born as a piece of pro-worker legislation, it initially was criticized by business groups as a cause of bureaucratic arteriosclerosis that was worse than the disease of pension failures. Even worse, it prompted many employers to consider dispensing with pension plans altogether rather than struggle with the administrative and financial obligations of ERISA. Business, labor, and the public all complained about the law's complexity. It even became something of a national joke as regulators took …

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance Law in the years 2000 and 2001.

The Methodological Commitments Of Contemporary Contract Theory, Jody S. Kraus

Faculty Scholarship

Autonomy and economic theories of contract seem to provide incompatible accounts of contract law. In this Chapter, I argue that what appear to be first-order disagreements over particular contract doctrines are really implicit second-order disagreements reflecting the divergent methodological commitments of autonomy and economic theories. I argue that autonomy theories accord priority to the normative project of justifying existing contract doctrine, treat contract law as consisting in the plain meaning of doctrine, require contract theory to explain the distinctive character of contract law, and take the ex post perspective in adjudication. In contrast, economic theories accord priority to the positive …

Reinventing The Deal: A Sequential Approach To Analyzing Claims For Enforcement Of Modified Sales Contracts, Irma S. Russell

Faculty Works

No abstract provided.

Ohio: A Microcosm Of Tort Reform Versus State Constitutional Mandates, Stephen J. Werber

Law Faculty Articles and Essays

Tort reform emanates, for our purposes, from two primary bodies: state judicial and legislative branches. The vast panoply of congressional and regulatory federal action that bears on the protections afforded and rights to recover for persons within their ambit is a subject for another day. Similarly, the rare areas in which the Supreme Court of the United States establishes federal common law are subjects for another day. On a national scale, the impetus for state legislative reform action can be found in a series of landmark decisions that were soon adopted, in largely similar form, by almost all state supreme …

Foreword: Is Reliance Still Dead?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

One thing I found out when I was a prosecutor is that you should never tell a police officer he cannot do something, for that just serves as an open invitation for him to do it. In recent years, I have learned a similar lesson about legal scholarship which I should probably keep to myself but won't. If you proclaim the existence of a scholarly "consensus," this is an open invitation for academics to try to demolish such a claim.

Good Faith And The Cooperative Antagonist (Symposium On Revised Article 1 And Proposed Revised Article 2 Of The Uniform Commercial Code), James J. White

Articles

One of Karl Llewellyn's most noted achievements in the Uniform Commercial Code was to impose the duty of good faith on every obligation under the Uniform Commercial Code.1 Some (I am one) have privately thought that imposition of this unmeasurable, undefinable duty was Llewellyn's cruelest trick, but no court, nor any academic writer, has ever been so bold or so gauche as to suggest that good faith should not attend the obligations of parties under the UCC. Notwithstanding this silent indorsement of the duty of good faith, the courts2 and commentators3 have had difficulty in determining what is and what …

Language And Formalities In Commercial Contracts: A Defense Of Custom And Conduct, David Snyder

Articles in Law Reviews & Other Academic Journals

This article defends the decision to retain usage of trade, course of performance, and course of dealing in the revision of Article 1 of the Uniform Commercial Code. The article responds to recent neoformalist criticisms of the incorporation approach and offers a theoretical justification. Usage of trade and course of dealing should be understood as part of the parties' language, following Wittgenstein's understanding of language. Course of performance, which presents a weaker case in terms of language, should be understood as a legal formality, following Fuller's explanation of formalities. Thus understood, custom and conduct can be as important as written …