Contracts Commons^™

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.

Interpreting Insurance Policies, Jeffrey W. Stempel

Scholarly Works

Like any other contract, an insurance policy may become the subject of a legal dispute. When disputes arise over insurance coverage, lawyers must combine their skill in contract interpretation with their knowledge of insurance law, bringing both to bear on the special problems related to this type of contract. Each dispute has unique traits, but a few basic ground rules of contract law and insurance law can help you interpret insurance policies and resolve disputes over insurance coverage.

The Intersections Of Articles 2 And 9: Recommendations For Clarification And Revisions, Richard E. Speidel, James J. White

Other Publications

Both Article 2, Sales and Article 9, Secured Transactions are under revision. The process of coordination is underway, but there is still much work to do. The following materials identify the major issues at the intersections and some tentative solutions. All references are to the 1990 Official Text of the Uniform Commercial Code unless otherwise stated. When stated, references are to the October, 1995 Draft of Article 2 and the July, 1995 Draft of Article 9.

Warranties And Remedies On Breach: Proposed Revision Of Article 2 And Related Proposals Concerning Products Liability Law, Richard E. Speidel, James J. White

Other Publications

The following materials contain (1) the warranty provisions, §§2-313 through 2-318, from the October, 1995 Draft of Revised Article 2, Sales, with selected Reporter's Notes; (2) Discussion questions on warranties; and (3) A comparison of Revised Article 2 and the ALl's Products Liability Restatement (Tent. Draft #2, March 13, 1995), with discussion problems.

Internal Governance Standards, Suramya Balachandran

LLM Theses and Essays

Corporate control has a variety of connotations; it can mean the group of individuals who are regarded as “the control” of a corporation, the office of a corporation, or a fiduciary relationship between the office holder and the corporation. Corporate control transactions are changes in a corporation’s structure motivated by the desire for growth of the corporation, such as setting up new divisions, acquiring or being acquired by another corporation, selling or buying stock, and entering or leaving markets. Control transactions have been a successful business practice since the 1980s. The first part of this thesis analyzes the benefits of …

How To Negotiate A Sales Contract, James J. White

Articles

A. Introduction 1. In my experience, lawyers begin negotiating only after the business people have decided upon the description and quality of the product, the time of delivery, and the mode and amount of payment. The lawyers are left with the pathological problems - who gets what in case of trouble. 2. Most of those pathological problems relate to the seller's responsibility if the product does not conform to the contract or otherwise fails to please the buyer. These failures can cause economic loss to the buyer, economic loss to a remote purchaser, or personal injury or property damage to …

They Came From "Beyond The Pale": Security Interests In Tort Claims, Harold R. Weinberg

Law Faculty Scholarly Articles

"[B]eyond the pale" is how the drafters of Article Nine of the Uniform Commercial Code regarded tort claims. They considered tort claims to be noncommercial assets inappropriate for inclusion as collateral within the scope of a commercial financing statute. Tort claims may not be out-of-bounds much longer. The Article Nine Study Committee of the Permanent Editorial Board for the Uniform Commercial Code recommends expansion of the Article's scope to encompass security interests in claims arising out of tort. This recommendation is significant. Tort causes of action comprise an ever-expanding universe of civil wrongs for which courts afford redress. The owners …

Stand By Your Man?: Legal Protection For Wives Who Charge The Family Home To Secure Their Husbands' Business Debts, Belinda Fehlberg

Cardozo Journal of Equal Rights & Social Justice

The article examines the legal protections for wives in England who charge the family home as security for their husbands' business debts, focusing on the challenges in balancing private family dynamics with third-party creditor rights. It critiques the limited protection offered by the law, particularly through the lens of the House of Lords' rulings in Barclays Bank v. O'Brien and CIBC Mortgages v. Pitt. The analysis highlights the tension between protecting vulnerable wives and maintaining the viability of the family home as collateral for business loans.

A Defense Of Judicial Reconstruction Of Contracts, Mark P. Gergen

Indiana Law Journal

No abstract provided.

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 …

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 …

Right Of First Refusal And The Package Deal, Bernard Daskal

Fordham Urban Law Journal

A persistent problem in right-of-first-refusal jurisprudence has been the effect of an acceptable third-party offer for a package of properties, a portion of which is burdened. In determining the effect of such package deals, courts have primarily relied on principles related to the nature and operation of rights of first refusal. Unfortunately, this approach has led different courts to reach disparate and inconsistent results.The problems posed by the package deal, of course, could be remedied by the parties themselves through a provision addressing the effect of such a transaction on the rightholder's privilege. The provision would answer whether the package …

Much Ado About Nothing: Achieving "Essential" Negotiability In An Electronic Environment, David Frisch

Law Faculty Publications

The approach adopted here is both historical and analytical. Part II of this Article describes the historical development of assignment law, and demonstrates that it parallels a more general shift of the law away from physical conceptions of property. It concludes that although a paper-based document may still be a practical requirement, there is no longer a valid theoretical justification for not making the law of negotiable instruments media neutral. In Part III we survey the features of negotiable instrument law and compare it generally with the law of assignments. This comparison suggests that the most striking substantive difference between …

The Influence Of International Practice On The Revision Of Article 5 Of The Ucc, James J. White

Articles

The topic of this symposium is the influence that international law has had on domestic law of the United States. I believe that the story of the revision of Article 5 of the Uniform Commercial Code fits here, but some might dispute that. Although it is certainly fair to say that international practice-in a sense international law-was a powerful influence on the revision of Article 5 of the Uniform Commercial Code, that practice, and the way in which that influence was exerted were almost entirely sui generis to the letter of credit law, practice and history.

"Instinct With An Obligation" And The "Normative Ambiguity Of Rhetorical Power", Robert A. Hillman

Cornell Law Faculty Publications

No abstract provided.

Preserving Real Estate Contract Financing In Washington: Resisting The Pressure To Eliminate Forfeiture, Thomas Leo Mckeirnan

Washington Law Review

There is pressure in Washington to abolish the forfeiture remedy from real estate contracts. Eliminating forfeiture would cripple the real estate contract and thus provide a disincentive for sellers to finance sales of their property. This result would be economically unsound and in conflict with the public policy in favor of promoting home ownership. Instead of abolishing forfeiture, the Washington State Legislature should amend current legislation to provide a more sensible and certain forfeiture remedy.

A Maternalistic Approach To Surrogacy: Comment On Richard Epstein's Surrogacy: The Case For Full Contractual Enforcement, Margaret F. Brinig

Journal Articles

Many of the other participants in this Symposium have written extensively about surrogacy. Not only have they contributed to the debate, in some instances they have framed it. In some respects, therefore, I merely thank all of them and chime in. Unlike my fellow panelists, however, I do not think surrogacy merits an enthusiastic, positive response.

In this Comment, I propose to restate objections to specifically enforceable surrogacy contracts from a family-law perspective as well as from the philosophical or psychological roots of family law. I will then reexamine the problems of surrogacy from a contractarian, law-and-economics perspective, showing how …

Contracts, Copyright And Preemption In A Digital World, I Trotter Hardy

Richmond Journal of Law & Technology

Copyright is designed to provide some form of protection against unauthorized use of original informational materials. The rapid shift of information production and distribution to electronic form, with its corresponding ease of copying, naturally makes copyright-dependent industries nervous. Much talk in the news and on the "net" these days is about the future of copyright law, a law developed in an age of print and now perhaps too tied to that medium to have ready application to today's information technology.

Severability In Statutes And Contracts, Mark L. Movsesian

Faculty Publications

Established doctrine on the severability of unconstitutional statutory provisions has drawn criticism on almost every conceivable basis. Commentators have condemned severability doctrine as too malleable and as too rigid; as encouraging judicial overreaching and as encouraging judicial abdication. They have criticized the doctrine's reliance on legislative intent and its disregard of legislative intent; its excessive attention to political concerns and its inattention to political concerns; its lack of any coherent explanation.

The reasons for this lingering controversy are easy to discern. One is purely pragmatic. "We live in an age of statutes." Legislation provides our primary source of law in …

Fiduciary Rules And Rupa, J. Dennis Hynes

Publications

No abstract provided.

Fiduciary Duties As Default Rules, Tamar Frankel

Faculty Scholarship

This Article consists of four parts. Part I draws a profile of fiduciary relationships. It also explains the different responses of fiduciary and contract rules to the different problems that the relationships pose regarding: (1) the right of one party to rely on the other and the specific duties of loyalty and care, which mirror these rights; and (2) the events that trigger the application of fiduciary rules. Finally, it compares contract with fiduciary rules. The reasons for the existence of fiduciary rules suggest that, when in conflict, they trump the rules governing other parallel relationships, including contracts.

Part II …

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 …

International Arbitration And Procedures To Enforce Awards In The Relationship Between The United States And Germany, Michael Kronenburg

LLM Theses and Essays

Arbitration has long been regarded as a process that combines finality of decision with speed, low expense, and flexibility in solving problems. For these reasons, arbitration is often favored over litigation for dispute resolution. Particularly in international cases, a businessman may avoid litigation in a foreign country for various reasons: he may be unfamiliar with the proceedings; he may be afraid to find a “forum hostile” because of the different legal and cultural background of the judges; and he may wish to avoid the uncertainty concerning the law arising from the contract. Arbitration proceedings have been held constitutional by the …

Job Security: Protecting At-Will Employees With Good Cause Legislation, Mayumi Yokoyama

LLM Theses and Essays

Recent decades have witnessed significant developments in employment termination law in the United States. In particular, the long-standing “at-will” doctrine, under which employers can fire employees for good, bad, or no reason at all, has experienced great erosion and wide variations in law from state to state. There has been a movement of statutory and common law restrictions limiting an employer’s freedom to terminate at will, which reflects the increasing consciousness of job security by society and workers. This paper analyzes the problem of job security by tracing the origin of the at-will doctrine to 19th century principles favoring economic …

Notification Of Documentary Discrepancies In Letter Of Credit Transactions, Hong Liu

LLM Theses and Essays

The objective of the thesis is to examine only one aspect of the legal relationship between an issuer and a beneficiary, i.e., an issuer’s duties regarding notifying a beneficiary of documentary discrepancies in the letter of credit transactions. To lay down a theoretical foundation, the basic principle of the letter of credit law and policy considerations for this legal obligation will be explored in the thesis. In Chapter II, the relevant provisions of the U.C.C and U.C.P. will be examined and compared. Chapter III will focus on how the courts interpret and apply the U.C.C and U.C.P. in the cases …

Grant Gilmore, Holmes, And The Anxiety Of Influence, Charles M. Yablon

Articles

The article explores Grant Gilmore's ambivalent relationship with Oliver Wendell Holmes, particularly in The Death of Contract. Gilmore both praises Holmes's intellectual brilliance and critiques his formalistic approach to contract law. Drawing on Harold Bloom's The Anxiety of Influence, the analysis suggests that Gilmore engages in a struggle with Holmes's legacy, reflecting a mix of admiration and opposition, akin to how strong poets handle influential predecessors.

The Internationalization Of Contractual Conflicts Law, Patrick J. Borchers

Vanderbilt Journal of Transnational Law

Professor Borchers maintains that United States conflict of laws rules regarding contracts have long had an international character. This Article reviews the development of contractual conflicts law and examines how, through Joseph Story's treatises, the United States law in this area assumed an international perspective.

These international influences have played and will increasingly play an important role in the development of U.S. contractual conflicts rules. This influence can be seen in both choice-of-forum and choice-of-law agreements. Both have been upheld by U.S. courts initially in international cases, which presented starker contrasts in choice of law or choice of forum. Once …

Frustration Of Contracts For The Sale Of Land In Singapore, Andrew B.L. Phang

Research Collection Yong Pung How School Of Law

The recent Singapore Court of Appeal decision of Lim Kim Som v. Sheriffa bah bte Abdul Rahman' is significant for at least two specific (and related) rea in the context of the doctrine of frustration: first, because it pertains to the m particular issue as to whether a contract for the sale of land can be frustrated; second, because it also raises certain significant questions with regard to m general aspects of the doctrine itself.

Sub‐Bailments And Consent, Andrew B.L. Phang

Research Collection Yong Pung How School Of Law

Of the two major strands existing in the increasingly important topic of sub- bailment on terms, one has become well settled, the other has been shrouded in ambiguity for close to two decades. The recent Hong Kong Privy Council decision of The Pioneer Container’ reaffirms the first strand and, more importantly, delivers a definitive pronouncement on the second.

An Independent Contractor Speaks His Mind: Can He Lose His Government Contract? An Analysis Of Heiser V. Umbehr, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Heiser v. Umbehr, 515 U.S. 1172 (1995). The author expected the Court to consider whether, and to what extent, a governmental unit can take into account an independent contractor's poltical speech in making decisions regarding the award or termination of government contracts.