Contracts Commons^™

Third-Party Beneficiaries And Contractual Networks, Alan Schwartz, Robert E. Scott

Faculty Scholarship

An increasing trend of economic agents is to form productive associations such as networks, platforms, and other hybrids. Subsets of these agents contract with each other to further their network project and these contracts can create benefits for, or impose costs on, agents who are not contract parties. Contract law regulates third party claims against contract parties with the third-party beneficiary doctrine, which directs courts to ask whether the contracting parties "intended" to benefit a particular third party. We show here what courts do with third party claims when network members fail to perform for third parties and what the …

Individualized Injunctions And No-Modification Terms: Challenging "Anti-Reform" Provisions In Arbitration Clauses, Myriam E. Gilles

Faculty Articles

The Supreme Court’s recent decisions in AT&T Mobility v. Concepcion and American Express v. Italian Colors have considered only whether class actions for monetary damages may be barred by arbitration clauses requiring individual adjudication. The Justices have not examined the enforceability of arbitration clauses or arbitral rules which explicitly prohibit claimants from seeking or arbitrators from granting broad injunctive relief in an individual dispute. I term these "anti-reform" provisions because they broadly prohibit an individual arbitral claimant from seeking to end a practice, change a rule, or enjoin an act that causes injury to itself and to similarly-situated non-parties. This …

Postdefault Interest Rates In Bankruptcy, David G. Carlson

Faculty Articles

This Article shows that as Bankruptcy Code section 506(b) is currently written, postdefault interest rates are prohibited when the default is an “ipso facto event” — a filing for bankruptcy or insolvency as the event of a default. Yet some courts have insisted on postdefault interest in situations reinstating a loan agreement and have been ignoring restrictions on pendency interest to permit oversecured creditors from obtaining penalty rates of interest. This Article argues that those holdings violate section 506(b) and Supreme Court precedent. It begins with an analysis of ipso facto defaults, showing that the Bankruptcy Code prohibits ipso facto …

When Does Some Federal Interest Require A Different Result?: An Essay On The Use And Misuse Of Butner V. United States, Juliet Moringiello

Juliet M Moringiello

Thousands of judges and scholars have relied on the statement in the 1979 Supreme Court opinion in Butner v. United States that “property interests are created and defined by state law...unless some federal interest requires a different result.” Often, they cite to the statement as a policy constraint that elevates state property law over federal bankruptcy law. This Essay, written for the American Bankruptcy Institute – University of Illinois Symposium on Chapter 11 Reform, posits that the Butner rule is not as broadly applicable as commonly believed. To do so, the Essay surveys some notable uses and misuses of the …

Dirty Debts Sold Dirt Cheap, Dalie Jimenez

Dalie Jimenez

More than 77 million Americans have a debt in collections. Many of these debts will be sold to debt buyers for pennies, or fractions of pennies, on the dollar. This Article details the perilous path that debts travel as they move through the collection ecosystem. Using a unique dataset of 84 consumer debt purchase and sale agreement, it examines the manner in which debts are sold, oftentimes as simple data on a spreadsheet, devoid of any documentary evidence. It finds that in many contracts, sellers disclaim all warranties about the underlying debts sold or the information transferred. Sellers also sometimes …

Contracts: A Context And Practice Casebook (With M. Schwartz), Adrian Walters

Adrian J Walters

No abstract provided.

Dodging Windfalls: Damages Based On Market Price, Actual Loss, And Appropriate Awards, John Gotanda

John Y Gotanda

This article draws on the underlying policy of the United Nations Convention on Contracts for the International Sale of Goods (CISG) to demonstrate that Article 76’s market damages approach permits an aggrieved party in certain circumstances to recover damages in excess of the aggrieved party's actual loss for the breach of the underlying contract. While at first glance this result may appear to be at odds with the principles of full compensation and mitigation, in reality, it is not. It is consistent with the text of the CISG damages provisions. In addition, it effectuates the parties' allocation of risk in …

Contract For The Grant Of A Compliant Option To Purchase, Alvin W-L See

Alvin W-L See

Are "Legal" Marijuana Contracts "Illegal"?, Luke M. Scheuer

Luke M Scheuer

The Transformation Of South African Private Law After Twenty Years Of Democracy, 14 Nw. J. Int’L Hum. Rts. (Forthcoming 2016)., Christopher J. Roederer

Christopher J. Roederer

In The Transformation of South African Private Law after Ten Years of Democracy, 37 Colum. Hum. Rts. L. Rev. 447 (2006), I evaluated the role of private law in consolidating South Africa’s constitutional democracy. There, I traced the negative effects of apartheid from public law to private law, and then to the law of delict, South Africa’s counterpart to tort law. I demonstrated that the law of delict failed to develop under apartheid and that the values animating the law of delict under apartheid were inconsistent with the values and aspirations of South Africa’s democratic transformation. By the end of …

Principles Versus Rules In The Emerging European Contract Law, Pietro Sirena, Yehuda Adar

Pietro Sirena

The authors propose to take principles "seriously", by understanding them in the framework of the well-known Dworkinian theory of law. As showed by their constitutional link to human rights and fundamental freedoms, "principles" would therefore be opposed to "rules". At the European level particularly, principles would encapsulate the common core of the laws of the Member States and (especially with regard to subsidiarity and proportionality) would set the conditions for it to be applied by the Court of Justice. "Principles" would promote the goal of European legal unity by reinforcing what national laws already have in common, while "rules" enacted …

Les Conditions Générales D’Utilisation Des Sites Web Soumis Au Droit Américain Et Quelques Protections Pour Les Consommateurs, W. Gregory Voss

W. Gregory Voss

Un aperçu du droit américain des conditions générales d’utilisation des sites web et quelques protections pour les consommateurs en droit américain. Développé d'après mon intervention intitulée “Les contrats du commerce électronique soumis au droit américain” à la Journée d’Etude: Les défis du numérique dans les entreprises en Europe, à Toulouse, France, le 27 février 2015.

Bubbles (Or, Some Reflections On The Basic Laws Of Human Relations), Donald J. Kochan

Donald J. Kochan

Defectos Y Virtudes Del Proyecto De Reforma Del Código Civil. El Caso De La Representación En Los Negocios Jurídicos., Fort Ninamancco Córdova

Fort Ninamancco Cordova

No abstract provided.

Keepings, Donald J. Kochan

Donald J. Kochan

The Role Of The Profit Imperative In Risk Management, Christopher French

Christopher C. French