Contracts Commons^™

Contracts: An Introduction To A Symposium And A Few Additional Thoughts, Jennifer S. Martin

St. Thomas Law Review

On February 21, 2014, the St. Thomas University School of Law opened a symposium entitled simply "Contracts" in conjunction with the Ninth Annual International Conference on Contracts hosted by the School of Law. The decision of the St. Thomas Law Review to sponsor and conduct a symposium on the simple broad reaching topic of contract law with this esteemed group was a natural decision and exciting opportunity. Contract law has long been a foundation study for students and scholars with a rich history and significance to individuals and businesses alike. Significantly, as reflected by Dr. Roni Rosenberg in his essay …

Donee Beneficiaries And The Parol Evidence Rule, Joseph M. Perillo

St. Thomas Law Review

Donee beneficiaries are pretty peculiar. They own the rights created by a contract created by others. Their rights have primacy over the promisee's rights' but the promisees have enforceable rights as well. The donee beneficiaries may be totally unaware of these enforceable rights for which they have not given consideration. For purposes of this essay, "donee beneficiary" means any intended beneficiary other than a creditor beneficiary. A creditor beneficiary is a promisor who assumes a debt that "will satisfy an obligation of the promisee to pay money to the beneficiary . ... " Thus defined, third party donee beneficiaries are …

Emergence On Contract Standards And Its Future Impact On Legal Education, Kingsley Martin

St. Thomas Law Review

Let me start with a story. It was almost thirty years ago that I graduated from Harvard Law School and joined my first law firm. I distinctly remember my first assignment, which was to draft a credit agreement. Despite my education, I had no clue how to perform the assignment. I had to do it the same way as everyone else, which was to go around the corridors, bang on some doors, get some examples, sit down and start to read them. I have no doubt that my first few attempts and, in all likelihood, years' worth of drafts, were …

The Contract: Between Contract Law And Criminal Jurisprudence, Roni Rosenberg

St. Thomas Law Review

The structure of the essay is as follows: Part I presents the general legal premise that enables the conviction of one who has caused harm by an omission in cases where the duty to act originates in a contractual obligation and highlights U.S. case law on this topic. Part II distinguishes between the duty to act that originates in a contract and a similar duty that is mentioned in case law and literature: the actual assumption of responsibility for a potential victim. Part III introduces various scenarios to assist in examining which contracts can serve as a source of a …

Designing And Constructing Commercial Agreements In The 21st Century, Jeffrey Ritter

St. Thomas Law Review

In the 21s century, commercial agreements crafted by attorneys structure relationships in which the administration and execution of those relationships is largely, if not exclusively, governed through the use of digital technologies. These technologies communicate information, record and report activities taken by the parties in furtherance of their relationship, make payments of monies and other compensation, and provide the evidence with which disputes among the parties will be resolved. All of these functions are designed and executed through technology systems that monitor and record activities that are the basis for determining compliance with the requirements of those agreements at a …

Introducing The New Handshake To Expand Remedies And Revive Responsibility In Ecommerce, Amy J. Schmitz

St. Thomas Law Review

Accordingly, this essay discusses how use of ODR [online dispute resolution] systems may help address the problematic results of the SWS [squeaky wheel system] in B2C [business to consumer] exchanges. Part II of the essay discusses possible reasons why the SWS has flourished in the consumer marketplace and provides some of the applicable behavioral, social, and empirical research." Part III then uncovers problematic consequences of the SWS in B2C exchanges, and Part IV proposes the "New Handshake" through tailored ODR systems that offer consumers efficient and fair means for accessing remedies with respect to their purchases." Part V concludes with …

Contractualizing Custody, Sarah Abramowicz

Law Faculty Research Publications

Many scholars otherwise in favor of the enforcement of family contracts agree that parent-child relationships should continue to prove the exception to any contractualized family law regime. This Article instead questions the continued refusal to enforce contracts concerning parental rights to children’s custody. It argues that the refusal to enforce such contracts contributes to a differential treatment of two types of families: those deemed “intact”—typically consisting of two married parents and their offspring—and those deemed non-intact. Intact families are granted a degree of freedom from government intervention, provided that there is no evidence that children are in any danger of …

Santa Anna And His Black Eagle: The Origins Of Pari Passu?, Benjamin Chabot, Mitu Gulati

Faculty Scholarship

One of the most debated issues in international finance is the meaning of the pari passu clause in sovereign bonds. The clause is ubiquitous; it is in almost every single foreign-law sovereign bond out there. Yet, almost no one seems to agree on its meaning. One way to cut the Gordian knot is to track down the origins of the clause. Modern lawyers may have simply copied the clause from the documents of their predecessors without understanding its meaning. But surely the people who first drafted the clause knew what it meant. Four enterprising students at Duke Law School may …

A People’S History Of Collective Action Clauses, Mark C. Weidemaier, Mitu Gulati

Faculty Scholarship

For two decades, collective action clauses (CACs) have been part of the official-sector response to sovereign debt crisis, justified by claims that these clauses can help prevent bailouts and shift the burden of restructuring onto the private sector. Reform efforts in the 1990s and 2000s focused on CACs. So do efforts in the Eurozone today. CACs have even been suggested as the cure for the US municipal bond market. But bonds without CACs are still issued in major markets, so reformers feel obliged to explain why they know better. Over time, a narrative has emerged to justify pro-CAC reforms. It …

The Rise And Fall Of Unconscionability As The 'Law Of The Poor', Anne Fleming

Georgetown Law Faculty Publications and Other Works

What happened to unconscionability? Here’s one version of the story: The doctrine of unconscionability experienced a brief resurgence in the mid-1960s at the hands of naive, left-liberal, activist judges, who used it to rewrite private consumer contracts according to their own sense of justice. These folks meant well, no doubt, much like present-day consumer protection crusaders who seek to ensure the “fairness” of financial products and services. But courts’ refusal to enforce terms they deemed "unconscionable” served only to increase the cost of doing business with low-income households. Judges ended up hurting the very people they were trying to help. …

Analysis Of Incoterms As Usage Under Article 9 Of The Cisg, William P. Johnson

All Faculty Scholarship

This Article defines usage, as that term is used in the UN Convention on Contracts for the International Sale of Goods (CISG), in order to consider whether the ICC’s definitions for common delivery terms set forth in the ICC publication Incoterms should be characterized as usage for purposes of the CISG. This Article then describes the misguided approach that to date has been taken by U.S. courts when analyzing the role of Incoterms as usage for contracts governed by the CISG. Finally, this Article proposes a method for proper analysis of Incoterms under the CISG, including the role that Article …

Extrinsic Evidence, Parol Evidence, And The Parol Evidence Rule: A Call For Courts To Use The Reasoning Of The Restatements Rather Than The Rhetoric Of Common Law, Timothy Archer, Shalayne Davis, David G. Epstein

Law Student Publications

This article is an example of what Professor Richard Epstein would call "Contracts small." According to Professor Richard Epstein, "'Contracts small' relates to contract law at the doctrinal level; it focuses on the rules of contract formation and performance; the everyday 'stuff of lawyer's law.' "This article looks to the Restatement of Contracts (hereafter "Restatement") and the Restatement (Second) of Contracts (hereafter "Restatement Second") for answers to the questions raised by the two problems. The Restatements generally have both been praised and condemned for their focus on doctrinal issues-on what Richard Epstein calls the "everyday stuff of lawyer's law." As …

Private Ordering In The Market For Professional Services, Cassandra Burke Robertson

Faculty Publications

Freedom of contract is significantly restricted in the market for professional services. Under the so-called “corporate practice doctrine,” professionals such as doctors and lawyers are prohibited from practicing within corporate entities, and laypeople are likewise prohibited from investing in professional service firms. Defenders of this prohibition argue that it can be justified as a means of protecting professional independence and thereby increasing the quality of care. In fact, however, the available evidence suggests that investment restrictions are counterproductive to their stated goal. In practice, these restrictions raise costs and reduce access without measurably improving the quality of service at all. …

International Commercial Arbitration, Anticipatory Repudiation, And The Lex Mercatoria, Kyle Winnick

Cardozo Journal of Conflict Resolution

The scope of this Note is thus two-fold: (1) to delineate the doctrine of anticipatory breach as it is currently under the lex mercatoria; and, (2) to evaluate and argue for its consistency in application by international arbitral tribunals. Section I-A discusses when arbitrators will choose to apply the lex mercatoria as the substantive law of the dispute. Section I-B explains the doctrine of anticipatory repudiation and discusses its inherent ambiguity. Section IC assesses the role of the CISG and the UNIDROIT Principles as a manifestation of the lex mercatoria. Section II-A explores the severability issue and an …

“Sticky” Arbitration Clauses? The Use Of Arbitration Clauses After Concepcion And Amex, Peter B. Rutledge, Christopher R. Drahozal

Scholarly Works

We present the results of the first empirical study of the extent to which businesses have switched to arbitration after AT&T Mobility LLC v. Concepcion. The Supreme Court’s decision in Concepcion led commentators to predict that every business soon would use an arbitration clause, coupled with a class arbitration waiver, in their standard form contracts to avoid the risk of class actions. We examine two samples of franchise agreements: one sample in which we track changes in arbitration clauses since 1999, and a broader sample focusing on changes since 2011, immediately before Concepcion was decided. Our central finding is consistent …

Reclaim This! Getting Credit Seller Rights In Bankruptcy Right, Lawrence Ponoroff

University of Richmond Law Review

No abstract provided.

The Anomaly Of Entrapment, Jessica A. Roth

Articles

Now in our second decade after 9/11, we are firmly in the prevention era of law enforcement. Faced with the unacceptable consequences of identifying threats too late, government agents are moving aggressively to identify potential terrorists before they strike. Undercover agents and confidential informants necessarily play a large role in such efforts. As a result of such operations, we have seen a number of cases brought to trial in the federal courts in which defendants have asserted the entrapment defense. To date, the defense has not succeeded. However, as a consequence of these cases, the United States Supreme Court may …

Chaperoning Love Online: Online Dating Liability And The Wavering Application Of Cda § 230, Lindsey A. Datte

Cardozo Journal of Equal Rights & Social Justice

The note argues that the online dating industry's voluntary adoption of screening initiatives, while well-intentioned, is legally misguided. Such practices may expose platforms to increased liability and undermine the protections afforded by the Communications Decency Act (CDA) 230, which shields interactive computer services from liability for third-party content. The analysis contends that these efforts to self-regulate, though driven by legislative and societal pressure, may inadvertently erode the industry's immunity under CDA 230 and create new legal vulnerabilities.

Penalty Default Licenses: A Case For Uncertainty, Kristelia A. García

Publications

Research on the statutory license for certain types of copyright-protected content has revealed an unlikely symbiosis between uncertainty and efficiency. Contrary to received wisdom, which tells us that in order to increase efficiency, we must increase stability, this Article suggests that uncertainty can actually be used to increase efficiency in the marketplace. In the music industry, the battle over terrestrial performance rights--that is, the right of a copyright holder to collect royalties for plays of a sound recording on terrestrial radio--has raged for decades. In June 2012, in a deal that circumvented the statutory license for sound recordings for the …

Fair Or Foul? Major League Baseball's Use Of A Tortious Interference Lawsuit As A Means Of Investigation, Michael S. Beck

Cardozo Arts & Entertainment Law Journal

No abstract provided.

State Contract Law And Debt Contracts, Colleen Honigsberg, Sharon Katz, Gil Sadka

Ira M. Millstein Center for Global Markets and Corporate Ownership

This paper examines the relationship between debt contracts and state contract law. We first develop an index to evaluate whether each state’s law is favorable or unfavorable to lenders. We then analyze how the contract terms, the frequency of covenant violations, and the repercussions of covenant violations vary across states. We find that cash collateral is most likely to be used when the contract is governed by law that is favorable to debtors and that out-of-state borrowers who use favorable law pay higher yield spreads. In addition, when the law is favorable to lenders, there are significantly fewer covenant violations, …

Contract Theory – Who Needs It?, Avery W. Katz

Faculty Scholarship

Philosophy is perfectly right in saying that life must be understood backward. But then one forgets the other clause – that it must be lived forward.
Soren Kierkegaard

Both law students and law teachers have traditionally been drawn to conceptual projects that attempt to systematize the field of contract law. The reasons for this are easy to see: the field is doctrinally complex, few beginning students have any substantial experience with the kinds of fact patterns that arise in the cases, and the law is a locus of contestation over fundamental issues of economic liberalism that go to the heart …

The Contractualization Of Family Law In The United States, Fernanda Nicola, Adrienne Hunter Jules

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Contesting Disclaimer-Of-Reliance Clauses By Efficiency, Free Will, And Conscience: Staving Off Caveat Emptor, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

This Article hopes to make evident two trends seemingly in conflict. The first trend is toward raising the standards of probity and veridicality in contractual relations toward greater accountability and liability on market actors operating outside traditional bounds. The first is expressed by new rules that: require good faith and fair dealing between parties; ensure sellers are obligated to disclose material facts about a property otherwise unavailable to buyers; and make wrongdoing parties liable to non-parties who foreseeably relied on the wrongdoers' contractual undertakings. This trend promises to avert injury, achieve efficiency, and seems to accord with society's evolving notions …

Personalizing Default Rules And Disclosure With Big Data, Ariel Porat, Lior Jacob Strahilevitz

Michigan Law Review

This Article provides the first comprehensive account of personalized default rules and personalized disclosure in the law. Under a personalized approach to default rules, individuals are assigned default terms in contracts or wills that are tailored to their own personalities, characteristics, and past behaviors. Similarly, disclosures by firms or the state can be tailored so that only information likely to be relevant to an individual is disclosed and information likely to be irrelevant to her is omitted. The Article explains how the rise of Big Data makes the effective personalization of default rules and disclosure far easier than it would …

A Wrong Turn In History: Re-Understanding The Exclusionary Rule Against Prior Negotiations In Contractual Interpretation, Yihan Goh

Research Collection Yong Pung How School Of Law

A reason justifying the exclusionary rule against prior negotiations in the interpretation of contracts is its longevity. Yet, the authorities commonly cited in support of the exclusionary rule are mostly traceable to Lord Wilberforce’s speech in the relatively recent case of Prenn v Simmonds. This article suggests that the law took a wrong turn in that case and caused later courts to support the exclusionary rule by recourse to policy-oriented justifications, instead of principle-based ones. The emphasis on policy-oriented justifications, and the recantation of Prenn v Simmonds as reason enough for the exclusionary rule, support an independent rule against prior …

Non-State Law In The Hague Principles On Choice Of Law In International Contracts, Ralf Michaels

Faculty Scholarship

Article 3 of the Hague Principles on Choice of Law in International Contracts is the first quasi-legislative text on choice of law to allow explicitly for the choice of non-state law also before state courts. This paper, forthcoming in a Festschrift, puts the provision into a broader context, discusses their drafting history and particular issues involved in their interpretation. It also provides a critical evaluation. Article 3 does not respond to an existing need, and its formulation, the fruit of a compromise between supporters and opponents of choosing non-state law, makes the provision unsuccessful for state courts and arbitrators alike.

Elhauge On Tying: Vindicated By History, Barak D. Richman, Steven W. Usselman

Faculty Scholarship

No abstract provided.

The Unidroit Principles As Global Background Law, Ralf Michaels

Faculty Scholarship

After twenty years of existence, it becomes apparent that the role actually played by the UNIDROIT Principles of International Commercial Contracts (PICC) is quite different from the one originally intended. This article first presents nine surprising findings concerning the actual use of the PICC, as it can be assessed on the basis of published opinions, legislation, and scholarship. It then uses these findings to suggest that the PICC should not be viewed as a code or even a non-state law. Instead, their nature is that of a Restatement of global general contract law, and their function is that of a …

The Fiduciary Character Of Agency And The Interpretation Of Instructions, Deborah A. Demott

Faculty Scholarship

This chapter in a forthcoming book justifies the conventional characterization of common-law agency as a fiduciary relationship. An agent serves as the principal’s representative in dealings with third parties and facts about the world, situating the agent as an extension of the principal for legally-salient purposes. A principal’s power to furnish instructions to the agent is the fundamental mechanism through which the principal exercises control over the agent, a requisite for an agency relationship. The agent’s fiduciary duty to the principal provides a benchmark for the agent’s interpretation of those instructions. The chapter draws on philosophical literature on the identity …