Contracts Commons^™

Measuring The Unjust Enrichment In A Restitution, Howard Hunter

Research Collection Yong Pung How School Of Law

Unjust enrichment is a theme common to most restitution cases in the United States. The theory of recovery is based on a justice principle the disgorgement of an unfairly obtained gain. The goal, in general, is to require the defendant to give up his gain rather than to compensate the plaintiff for a loss, as in a tort case, or to substitute damages for an unfulfilled expectancy, as in a contract case. This paper examines some of the issues that surround the measurement of the unjust enrichment and the defendant's liability. There are a number of straightforward rules for the …

Hegel And Modern Contract Theory: A Comment On Benson And Rosenfeld, Jay M. Feinman

Cardozo Law Review

No abstract provided.

Performance Obligations Of The Aggrieved Contractant: The French Experience, Edward A. Tomlinson

Faculty Scholarship

No abstract provided.

Newsletter Vol.17 No.1 1989, National Center For The Study Of Collective Bargaining In Higher Education And The Professions

National Center Newsletters

No abstract provided.

Written Agreements In The Lender-Borrower Context: The Illusion Of Certainty, Robert D. Rowe

Vanderbilt Law Review

Recent legal battles in the lender-borrower arena have received widespread attention. The fact that these battles occur merits little surprise because borrowers often seek recourse against lenders when financial commitments go awry. Moreover, recent lender-borrower cases do not introduce any new legal theories. The outcome is the noteworthy feature of these cases. Borrowers increasingly are obtaining judgments against lenders. This Note examines recent lender-borrower cases from a contractual perspective, analyzing the application of traditional contract principles in the lender-borrower context. Part II of this Note contends that courts are trying to address three concerns in the lender-borrower context: maintenance of …

"Bad Faith Breach": A New And Growing Concern For Financial Institutions, Susan D. Gresham

Vanderbilt Law Review

A majority of courts have determined that all contracts impose on the parties to the contract an implied covenant of good faith and fair dealing in their actions with each other. This implied covenant prohibits a contracting party from injuring another party's right to receive the benefits of the agreement. Breach of this implied covenant usually creates a cause of action based on contract rights. Moreover, California courts maintain that breach of the implied covenant of good faith and fair dealing creates a tort action as well. The California courts initially limited these tort actions to claims against insurance companies. …

Software Licenses As Personal Service Contracts, 9 Computer L.J. 491 (1989), Terrence W. Thompson

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

Rowe V. State Bank Of Lombard: The Key To Unlocking A Landlord's Duty To Provide Security, 23 J. Marshall L. Rev. 131 (1989), Jeffrey Fowler

UIC Law Review

No abstract provided.

Stepping Out Of The Morass Of Duress Cases: A Suggested Policy Guide, Juliet P. Kostritsky

Faculty Publications

Traditional coercion theories and elements are simply inadequate as an exclusive focus of analysis in duress cases. This Article does not propose a new theory of duress. Instead, it suggests a refinement of doctrine in which the courts candidly articulate certain key policy goals and develop elements based on them. These policy goals include efficiency, disclosure of unexpected risks, judicial capability, reliance, and economic incentives. If decisionmakers adopted the policy analyses suggested here, the predictability of judicial decisionmaking would be enhanced and a supplemental analysis would be available when the doctrinal elements become difficult to apply. Moreover, this approach would …

The Warranty Of Quality In Sale Of Goods Under The Perspective Of The American And French Law, Renaud Baguenault De Puchesse

LLM Theses and Essays

While the United States’ common law system is characterized by diversity due to each state having its own set of rules, in certain areas there are nationwide legislative attempts of unification and standardization. One such attempt is the adoption of the Uniform Commercial Code which governs the sale of goods law in the United States. The French civil law system generally differs greatly from the American system in that it is primarily based upon statutes and codes. However, the American Uniform Commercial Code and the French Civil Code provide tangible, comparable bases to assess similarities and differences between American and …

Choice Of Law Issues In International Sale Of Goods Contracts, Bayu Seto Hardjowahono

LLM Theses and Essays

The growing quality and quantity of today’s international sales of goods activities is unquestionably influential and vital to the shaping of current national economies throughout the world.

The present work will explore the issue of choice of law questions in international sale of goods contracts by examining the approaches of the Vienna 1980 Convention, the Hague 1955 Convention and the 1985 Draft Convention. The present work concludes by showing that it is advisable for a forum to use the 2^nd Restatement approach in such a situation because of the degree of flexibility it offers in international trade practices.

Buying Blackacre: Form Contracts And Prudent Provisions, 23 J. Marshall L. Rev. 15 (1989), John H. Scheid

UIC Law Review

No abstract provided.

Working It Out: A Japanese Alternative To Fighting It Out, David J. Przeracki

Cleveland State Law Review

Since the end of World War II, Japan has soared to the summit of importance in the world economy. In recent years, the balance of trade between the United States and Japan has been tipped strongly in favor of the Japanese. Since America's hegemony in international contracting is waning, especially with the Japanese, new approaches must be considered. The purpose of this Note, therefore, is to provide the reader with an understanding of the difference between Japanese and American legal consciousness. Because the Japanese approach yields an exceptionally low rate of litigation, a secondary goal of this Note is to …

Arkansas Courts And Covenants Not To Compete, John R. Pagan

University of Arkansas at Little Rock Law Review

No abstract provided.

The Role Of The Family In Cadaveric Organ Procurement, Chad D. Naylor

Indiana Law Journal

No abstract provided.

Hiring Ruled Contractual, Bill Gore, Douglas A. Kahn, Stan Shields

Articles

On December 29, 1988, the California Supreme Court decided Foley vs. Interactive Data Corp., perhaps the most eagerly awaited state supreme court decision in years. The Foley ruling, which immediately was hailed as a tremendous victory for California employers, eliminated punitive damage awards for many wrongfully terminated employees. That was good news for the employers. The decision, however, also provided employers with sobering news. Most significantly, the court ruled that employment relationships essentially are contracts, with terms created by the reasonable expectation of the parties. Thus, the majority of California employees now have a right to sue for breach …

Why Is There Taylor V. Caldwell - Thre Propositions About Impracticability, Robert Birmingham

Faculty Articles and Papers

No abstract provided.

A Critical Legal Studies Perspective On Contract Law And Practice, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The critical legal studies movement is often viewed as highly theoretical, characterized by impenetrable scholarship that makes frequent reference to the work of"famous dead Europeans." Indeed, the theoretical detachment of critical legal studies from real-world concerns has led some to speculate that the methodologies of the movement are so abstract and stylized that they could be used to deny the validity of distinctions that we commonly rely upon in everyday life-even something as basic as the distinction between up and down. Given the level of abstraction at which most critical legal studies analysis occurs, one might wonder why a critical …

Interpretation Of Contemporary Commercial Agreement A Comparative Study, Qing Cai

LLM Theses and Essays

Many disputes arising under commercial agreements turn upon the interpretation of the agreement. Interpretation is the process by which a court ascertain in meaning that it will give to the language used by the parties in determining the legal effect of an existing agreement. It also involves questions as to whether additional duties or excuses will be implied. In addition, interpretation can be relevant to contract formation since courts may be forced to determine the meaning of communication used by the parties before they determine whether the parties have reached an agreement. To some extent, how the judges interpret the …

Efficient Remedies For Breach Of Warranty, Kenneth Chapman, Michael J. Meurer

Faculty Scholarship

This article attempts to suggest valuable refinements and extensions of the economic theory of warranty by explicitly considering the choice of remedies for breach of warranty in conjunction with the choice of warranty protection itself. In particular, it offers explanations for the prevalence of replacement terms rather than refund terms in warranties. Economists studying the general issue of breach of contract have noted that the choice of remedy has important implications for risk sharing, renegotiation, transaction-specific investment, and the incentive to breach.5 This article derives much of its insight from the recognition that work on the economics of contract breach …

Contracts As Commodities: The Influence Of Secondary Purchasers On The Form Of Contracts, Henry T. Greely

Vanderbilt Law Review

In 1970 Professor Arthur Leff brought a new vision to a half century of debate about standard form contracts' by pointing out that consumer contracts should be seen not primarily as "contracts," but as"things," intangible products, sold to the consumer. As "things," Leff argued, form contracts should be subject to the same kinds of warranty laws as tangible goods. The debate about form contracts in consumer transactions continues, but, as Leff predicted, the debate largely has ignored his insight concerning the nature of the pieces of paper involved.

Foreword: The Economics Of Contract Law, Michael J. Meurer

Faculty Scholarship

The articles in this issue are samples from the burgeoning economics of contract law. They demonstrate that lawyers a can bring economic models to bear on quite specific issues of co offer normative guidance regarding the structure of efficient The success of the symposium and the quality of the articles of this field will continue to flourish. The articles cover a fairly narrow range of contract law issues. The second through sixth articles all address topics involving remedies. Two of these loo at the optimal remedies to be provided by contract law, and the other three are concerned with remedies …

Gas Contracting: The Lessons Of The Seventies, John S. Lowe

Faculty Journal Articles and Book Chapters

No abstract provided.

Unstable Coalitions: Corporate Governance As A Multi-Player Game, John C. Coffee Jr.

Faculty Scholarship

This is an article written in honor of Professor Donald Schwartz, a leading figure in academic corporate law for over two decades, but also a man nearly unique in his willingness to move beyond corporate law to the general study of corporate behavior. In this light, this article will not explore the latest wrinkle in the law – the most recent case, latest SEC ruling, or newest takeover defense tactic – but will instead ask if there are new ways in which we should try to talk about corporate law and corporate behavior. These were questions that Don Schwartz repeatedly …

Contracts: Rodgers V. Tecumseh Bank: Re-Evaluating The Christian Principle Of Tort Liability For Breach Of Good Faith, Carolyn S. Smith

Oklahoma Law Review

No abstract provided.

Contracts: Allis-Chalmers V. Lueck: Exposing The Fatal Flaw In The "Christian Principle" Of Tort Liability For Breach Of Good Faith, Carolyn S. Smith

Oklahoma Law Review

No abstract provided.

Quantum Meruit And Building Contracts: Part I The Quantum Meruit Concept, Howard Hunter, J. W. Carter

Research Collection Yong Pung How School Of Law

The aim of this article is to discuss the restitutionary principles applicable to quantum meruit claims in building contracts. In the first part we consider the concept itself and identify the contexts in which such a claim is pursued. In the second part of the article, to be published in the next issue of the JCL, attention is directed, principally, to one issue, namely whether the contract price constitutes a ceiling on the amount recoverable under a quantum meruit claim following breach by the defendant.

Quantum Meruit And Building Contracts: Part Ii Does The Contract Price Put A Ceiling On A Recovery Via A Quantum Meruit?, Howard Hunter, J. W. Carter

Research Collection Yong Pung How School Of Law

The question posed by the title of this part of the article has been the subject of a substantial amount of commentary by American legal scholars and has been a central issue in a number of cases, almost all of them involving building contracts. The problem is easy to state: P and D have an agreement for P to construct a building for a total consideration of $X. When P is partially finished, D breaches. If the contract price and the value of the work to date roughly coincide, there is usually little problem in determining P's recovery. The standard …

Common Mistake In English Law: The Proposed Merger Of Common Law And Equity, Andrew B.L. Phang

Research Collection Yong Pung How School Of Law

Although the law relating to common mistake’ has engendered a plethora of conundrums, many problem areas have in fact been well-traversed in the literature.‘ The present article does not seek to re-cover such welltrodden ground, but attempts, instead, to suggest a different and more systematic approach that would effect a merger of the common law and equitable3 branches of common mistake into one coherent, doctrine.

Contract Scholarship And The Reemergence Of Legal Philosophy, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

It has been thirty years since Arthur Corbin's eight-volume treatise on contracts appeared in condensed form as a one-volume edition. No scholarly book on contract law of comparable scope has been published since. This void in contract law scholarship has been filled only by the occasional law review article, by books discussing particular aspects of contract law, and by the ongoing revisions of the Restatement of Contracts that culminated in the publication of the Restatement (Second) of Contracts in 1979.

The dominant legal climate has not been friendly to any form of literature that attempts to explicate legal doctrine systematically, …