Contracts Commons^™

Careful What You Wish For — Freedom Of Contract And The Necessity Of Careful Scrivening, Daniel S. Kleinberger

Faculty Scholarship

No abstract provided.

Beyond Unconscionability: Class Action Waivers And Mandatory Arbitration Agreements, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

We live in an age of convenience. From financial transactions to electronic correspondence, we frequently deal with large corporations that provide services in our daily lives. One of the prices we pay for the convenience of these transactions, however, is that our commercial relationships increasingly are based on standard form contracts written by large corporations. While these standard form contracts are necessary to an economically efficient society, the growing use of mandatory arbitration provisions and clauses that prohibit class actions in these contracts raises the spectre of corporate abuse.

Commodification And Contract Formation: Placing The Consideration Doctrine On Stronger Foundations, David Gamage, Allon Kedem

Articles by Maurer Faculty

Under the traditional consideration doctrine, a promise is only legally enforceable if it is made in exchange for something of value. This doctrine lies at the heart of contract law, yet it lacks a sound theoretical justification a fact that has confounded generations of scholars and created a mess of case law.

This article argues that the failure of traditional justifications for the doctrine comes from two mistaken assumptions. First, previous scholars have assumed that anyone can back a promise with nominal consideration if they wish to do so. We show how social norms against commodification limit the availability of …

The Strategy Of Boilerplate, Robert B. Ahdieh

Michigan Law Review

That boilerplate is pervasive is hardly surprising. In a variety of ways, standardized terms in day-to-day contracts serve an essential cost-saving function. By this measure, one might expect less frequent reliance on boilerplate in high-value contracts among sophisticated parties. Yet standard terms would appear to be no less widespread in contracts among the sophisticated. Notwithstanding their representation by able counsel, charged to craft comprehensive and detailed, but also particularized, contracts, such parties will commonly conclude agreements comprised heavily of traditional terms--contracting norms of a sort-rather than terms tailored to the distinct features of their particular bargain. Examples of seemingly suboptimal …

The Law And Sociology Of Boilerplate, Todd D. Rakoff

Michigan Law Review

In my view, the scholarship presented at this symposium demonstrates that, in order to analyze form contracts and boilerplate successfully, one must carry out a set of operations that embodies an approach I will call law and sociology. But I presume I was invited to be a commentator at this conference on boilerplate not because the article I wrote on one branch of the subject awhile back exemplified this methodological approach, but because it took a rather strong substantive position. And so I think I ought first to say a brief word about that. The article in question concerned contracts …

The Propriety Of Expanded Judicial Review Under The Faa: Achieving A Balance Between Enforcing Parties' Agreements According To Their Terms And Maintaining Arbitral Efficiency, Eric Chafetz

Cardozo Journal of Conflict Resolution

After an arbitration is concluded, the arbitrator or panel issues an award. An award is analogous to a court's judgment. Parties to an arbitration award can voluntarily comply with the award, without court intervention. However, unlike a trial where a judge's order marks the end of the proceedings, an arbitrator's award has no actual legal affect without court intervention. Court intervention occurs when a party files a motion either to confirm or to vacate an arbitration award.

Harmonizing The Law In Waiver Of Fundamental Rights: Jury Waiver Provisions In Contracts, Wayne Klomp

Nevada Law Journal

No abstract provided.

An Authors' Rights-Based Copyright Law: The Fairness And Morality Of French And American Law Compared, Jean-Luc Piotraut

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Formalism In American Contract Law: Classical And Contemporary, Mark L. Movsesian

Faculty Publications

It is a universally acknowledged truth that we live in a formalist era—at least when it comes to American contract law. Much more than the jurisprudence of a generation ago, today's cutting-edge work in American contract scholarship values the formalist virtues of bright-line rules, objective interpretation, and party autonomy. Policing bargains for substantive fairness seems more and more an outdated notion. Courts, it is thought, should refrain from interfering with market exchanges. Private arbitration has displaced courts in the context of many traditional contract disputes. Even adhesion contracts find their defenders, much to the chagrin of communitarian scholars.

This is …

Identity Theft: Tribute Bands, Grand Rights, And Dramatico-Musical Performances, Brent Giles Davis

Cardozo Arts & Entertainment Law Journal

No abstract provided.

"Thou Shalt Not Go About As A Talebearer Among Thy People": Jewish Law And The Private Facts Tort, Elie Mischel

Cardozo Arts & Entertainment Law Journal

No abstract provided.

An Empirical Analysis Of Ceo Employment Contracts: What Do Top Executives Bargain For?, Randall Thomas, Stewart J. Schwab

Vanderbilt Law School Faculty Publications

In this paper, we examine the key legal characteristics of 375 employment contracts between some of the largest 1500 public corporations and their Chief Executive Officers. We look at the actual language of these contracts, asking whether and in what ways CEO contracts differ from what are thought of as standard employment contract features for other workers. Our data provide some empirical answers to several common assertions or speculations about CEO contracts, and shed light on whether these contracts are negotiated solely to suit the preferences of CEOs or have provisions that insure that the employers' interests are also safeguarded. …

Fiduciary Duties And Unincorporated Business Entities: In Defense Of The "Manifestly Unreasonable" Standard, Mark J. Loewenstein

Publications

This article wades into the debate between contractarians and anti-contractarians over the extent to which statutes on unincorporated business entities should limit the ability of the participants in those entities to contract around fiduciary duties. Statutes enacted in the past several years provide considerable, but not complete, freedom to limit fiduciary duties. Contractarians argue that statutory limitations are inefficient and unnecessary, while anti-contractarians take the view that the statutes provide too much freedom of contract. This article stakes out a middle ground, arguing that the drafters of the statutes got it right and that in the absence of statutory limitations …

An Essay On The Challenges Of Drafting A Uniform Law Of Software Contracting, Maureen A. O'Rourke

Faculty Scholarship

This Essay, originally presented at Lewis & Clark Law School’s 2006 Distinguished Intellectual Property Visitor lecture, discusses the challenges involved in developing a uniform law of software contracting. Technology and the law have developed since 1995, when the first efforts to codify such a law began. These earlier efforts were largely unsuccessful, and substantial uncertainty still exists in transactions involving software. In this Essay, Dean O’Rourke discusses the American Law Institute’s Principles project that seeks to identify approaches courts could use in adjudicating disputes involving software agreements. The challenges of developing the Principles include the same theoretical, practical and political …

Boilerplate Today: The Rise Of Modularity And The Waning Of Consent, Margaret Jane Radin

Michigan Law Review

Thanks to the vision of Omri Ben-Shahar and the excellence of the scholars contributing to this symposium, students of the law of commercial exchange transactions will now understand how important and interesting, and indeed exciting, boilerplate really is. The various presentations are so rich that my assigned task of commentary cannot approach an adequate summation. Instead of attempting such a task, therefore, I will take up a slightly different one. My commentary will relate some of the ideas presented in the symposium to two themes that I think are significant for the groundwork of contract today: the growing modularity of …

Walking The Line Between Contract And Tort In Construction Disputes: Assessing The Use Of Negligent Misrepresentation To Recover Economic Loss After Presnell, Steven M. Henderson

Kentucky Law Journal

No abstract provided.

Sales, Carolyn L. Dessin, Keith A. Rowley, Robyn L. Meadows, Larry T. Garvin

Akron Law Faculty Publications

This article provides a comprehensive survey of significant developments in sales law under Article 2 of the Uniform Commercial Code (UCC) during the year 2005. The authors analyze key judicial decisions that interpret and apply various provisions of Article 2, covering topics such as contract formation, the statute of frauds, warranties, performance, remedies, and risk of loss. By examining these cases, the article offers insights into how courts are shaping the landscape of sales law, highlighting trends and emerging issues that practitioners and scholars should be aware of.

Diverging Perspectives On Electronic Contracting In The U.S. And Eu, Jane K. Winn, Brian H. Bix

Articles

The focus of this Article is the interrelated set of issues that have arisen, on one hand, from Internet transactions regarding the downloading of free or purchased software, as well as other Internet sales, and on the other hand, the distinctive transactional problems that modern business practices have created under the rubric of "shrink-wrap" or "terms in the box"—a late presentation of terms associated with the sale of computers or the licensing of software (with the terms included in the packaging, rather than presented to the user ahead of time)—but not necessarily confined to those transactions.

Such transactions raise novel …

The Impact Of Eu Unfair Contract Terms Law On U.S. Business-To-Consumer Internet Merchants, Jane K. Winn, Mark Webber

Articles

This article focuses on the application of European Union unfair contract terms law to retail Internet transactions that U.S. businesses might engage in with European consumers. It compares attitudes toward consumer protection regulation in the U.S. and the EU to provide some context within which the specific provisions of unfair contract terms law can be understood.

While many lawyers and legal academics in the U.S. who study the development of online markets are aware of the profound differences in U.S. and EU information privacy laws, the magnitude of the divergence in consumer electronic contracting law is not as widely recognized. …

Improving The Rolling Contract, Stephen E. Friedman

American University Law Review

This article addresses the increasingly common problem of buyers finding important contract terms inside the box of a newly purchased item instead of learning about them before or during purchase. The failure of courts to develop a satisfactory approach to deciding which contact terms sellers may provide after purchase is of great significance in light of the rapid proliferation of rolling contracts. In this article, Friedman proposes a mechanism that will ensure that sellers have the flexibility to defer presentation of some terms but that will also protect purchasers against the unfair imposition of unexpected and important terms arriving at …

Assignability Of Covenants Not To Compete: When Can A Successor Firm Enforce A Noncompete Agreement?, Adam Schneid

Cardozo Law Review

No abstract provided.

Is The Cisg Benefiting Anybody?, Gilles Cuniberti

Vanderbilt Journal of Transnational Law

The Convention on Contracts for International Sale of Goods (CISG) was supposed to increase legal certainty and reduce the transaction costs of international buyers and sellers. This Article argues that none of these goals has been met. A survey of 181 court decisions and arbitral awards applying the CISG shows that the vast majority of international buyers and sellers do not address the issue of the law governing their contracts, irrespective of the value at stake. Although the data is not easy to interpret, it follows that international buyers and sellers are simply not concerned with the legal regime governing …

Summary Of Waddell V. L.V.R.V. Inc., 122 Nev. ___, Christian Hale

Nevada Supreme Court Summaries

Appellants Arthur R. Waddell and his wife, Roswitha M. Waddell (the Waddells), entered into a contract to purchase a 1996 Coachmen Santara motor home (the RV) from crossappellant L.V.R.V. Inc., D/B/A Wheeler's Las Vegas RV (Wheeler's). In 1996 the Waddells agreed to purchase the RV and an extended warranty from Wheeler's, and requested that various repairs be performed on the vehicle's engine cooling system, that new batteries be installed, and that the door frames be aligned, prior to delivery. The Waddells took delivery of the RV on September 1, 1997. The Waddells noticed problems with the RV on their first …

A Social Dimension In European Private Law The Call For Setting A Progressive Agenda, Fernanda Nicola

Scholarly Articles in Law Reviews & Journals

I. The Europeanization of Private Law: Legal Sources, Ideology and Process: 1. Legal Sources in European Private Law. 2. Technocracy at work: What is the Common Frame of Reference? 3. The Ideological Divide: Neo-liberalism versus Social Justice in European Contract law. 4. The Social Justice Manifesto and the Legitimacy of the Process. 5. The Scholarly Industry and its Dark Sides. II. Social contract law and Social Europe, part of the problem or part of the solution?: 1. The "Social" Critique of Formalism in Contract Law and its historical inadequacy. 2. The Critique of the Social and its erasure in the …

Friendship & The Law, Ethan J. Leib

Faculty Scholarship

This Article's central argument is that the law needs to do a better job of recognizing, protecting, respecting, and promoting friendships. The law gives pride of place to other statuses--family and special professional relationships are obvious ones--but the status of the friend is rarely relevant to legal decisionmaking and public policymaking in a consistent way. After defining the concept of the friend, I offer a normative argument for why the law should promote a public policy of friendship facilitation and for why the law ignores friendships only at its peril. I highlight how the law already finds friendship relevant in …

Contract Law, Pey Woan Lee, Pearlie Koh, Chee Ho Tham

Research Collection Yong Pung How School Of Law

The issue of contract formation arose in the unusual context of civil procedure in Wellmix Organics (International) Pte Ltd v Lau Yu Man [2006] 2 SLR 117 (see also para 10.60 on “Mistake”). The plaintiff in this case unsuccessfully sought to enforce a consent unless order against the defendant. Andrew Phang Boon Leong J (as he then was) emphasised that, keeping in view its very drastic consequence of depriving a party of his cause of action, such an order will only be established where the terms of the agreement are clear and unambiguous. It was clear on the facts that …

Contract Law, Chee Ho Tham, Pearlie Koh, Pey Woan Lee

Research Collection Yong Pung How School Of Law

The issue of contract formation arose in the unusual context of civil procedure in Wellmix Organics (International) Pte Ltd v Lau Yu Man [2006] 2 SLR 117 (see also para 10.60 on “Mistake”). The plaintiff in this case unsuccessfully sought to enforce a consent unless order against the defendant. Andrew Phang Boon Leong J (as he then was) emphasised that, keeping in view its very drastic consequence of depriving a party of his cause of action, such an order will only be established where the terms of the agreement are clear and unambiguous. It was clear on the facts that …

New Rules For Promissory Fraud, Gregory Klass, Ian Ayres

Georgetown Law Faculty Publications and Other Works

This article summarizes the authors’ recommended reforms to the law of promissory fraud. These recommendations are presented as a Draft Prestatement of the Law of Insincere Promising. The basic propositions of the Prestatement are taken, with some modification, from the authors’ book, Insincere Promises: The Law of Misrepresented Intent (2005). This article adds extensive comments, in the style of the Restatements, and a prose introduction identifying three reforms we deem most important. First, courts should drop their insistence that every promise represents an intent to perform, and treat that representation instead as a default. Second, courts faced with claims of …

Public Symbol In Private Contract: A Case Study, Mitu Gulati, Anna Gelpern

Faculty Scholarship

This Article revisits a recent shift in standard form sovereign bond contracts to promote collective action among creditors. Major press outlets welcomed the shift as a milestone in fighting financial crises that threatened the global economy. Officials said it was a triumph of market forces. We turned to it for insights into contract change and crisis management. This article is based on our work in the sovereign debt community, including over 100 interviews with investors, lawyers, economists, and government officials. Despite the publicity surrounding contract reform, in private few participants described the substantive change as an effective response to financial …

Crossing Judge Parker’S Luten Bridge: Partisan Politics, Economic Visions, And Government Reform In Retrospect And Prospect, Peter G. Fish

Faculty Scholarship

Commentary on, Barak D. Richman, Jordi Weinstock & jason Mehta, A Bridge, a Tax Revolt, and the Struggle to Industrialize: The Story and Legacy of 'Rockingham County v. Luten Bridge Co.', 84 North Carolina Law Review 1841-1912 (2006)