Contracts Commons^™

The Economics Of Leasing, Thomas W. Merrill

Faculty Scholarship

Leasing may be the most important legal institution that has received virtually no systematic scholarly attention. Real property leasing is familiar in the context of residential tenancies. But it is also widely used in commercial contexts, including office buildings and shopping centers. Personal property leasing, which was rarely encountered before World War II, has more recently exploded on a world-wide basis, with everything from autos to farm equipment to airplanes being leased. This article seeks to develop a composite picture of the defining features of leases and why leasing is such a widespread and highly successful economic institution. The reasons …

Artworks As Business Entities: Sculpting Property Rights By Private Agreement, Christopher G. Bradley

Law Faculty Scholarly Articles

Modern business entities, such as LLCs, are increasingly created and deployed to accomplish customized transactions and evade legal restrictions. Rather than acting as traditional business enterprises, entities serve as tools to facilitate complex commercial transactions and surmount limitations presented by existing bodies of law. One limitation constrains the ways that private parties can agree to divide property rights—a doctrinal limitation sometimes referred to as numerus clausus. This Article shows that such limitations on the customizing of property rights by private agreement now can be surmounted by virtue of modern business entity law. After describing the key features of modern …

Contracts: An Eight-Factor Test For Quantum Meruit Compensation For A Dismissed Contingency Fee Counsel—Faricy Law Firm, P.A. V. Api, Inc. Asbestos Settlement Trust, 912 N.W.2d 652 (Minn. 2018), Mitch Ohiwa

Mitchell Hamline Law Review

No abstract provided.

"You're Fired!": The Common Law Should Respond With The Refashioned Tort Of Abusive Discharge, William R. Corbett

Journal Articles

An at will prerogative without limits could be suffered only in an anarchy, and there not for long--it certainly cannot be suffered in a society such as ours without weakening the bond of counter balancing rights and obligations that holds such societies together. Thus, while there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy. A different interpretation would encourage and sanction lawlessness, which law by its very nature …

Delaware As Deal Arbiter, Christina M. Sautter

Journal Articles

Most would agree that the Delaware courts are the leading jurists in the resolution of corporate conflicts, particularly in the Mergers & Acquisitions (M&A) context. Arguably a greater role that Delaware plays is that of a norm setter, both with respect to the expectations of management conduct in the M&A process and with respect to deal terms, particularly deal protection devices. Like in any relationship, there is a "give and take" between practitioners and Delaware. That is, practitioners are "on the front lines," often innovating with respect to new deal structures and deal terms. After some time, Delaware has the …

The Vested Way: A Model Of Formal Relational Contracts, Kate Vitasek, Jane K. Winn, Toni E. Nickel

University of the Pacific Law Review

No abstract provided.

Contract Law And Social Morality, Peter M. Gerhart

University of the Pacific Law Review

No abstract provided.

Year In Review: The Federal Circuit's 2019 Government Contract Law Decisions, Nathaniel E. Castellano

American University Law Review

No abstract provided.

Summit Insurance Co. V. Stricklett, 199 A.3d 523 (R.I. 2019), Amanda Larocca

Roger Williams University Law Review

No abstract provided.

Rhode Island Council On Postsecondary Education V.Hellenic Society Paideia – Rhode Island Chapter, 202 A.3d 931(R.I. 2019), Jeffery Rankel

Roger Williams University Law Review

No abstract provided.

Investment Misconceived: The Investment-Commerce Distinction In International Investment Law, Stratos Pahis

Faculty Scholarship

No abstract provided.

Rule By Data: The End Of Markets?, Katharina Pistor

Faculty Scholarship

This Article explores data as a source and, in their processed variant, as a means of governance that will likely replace both markets and the law. Discussing data not as an object of transactions or an object of governance, but as a tool for governing others on a scale that rivals that of nation states with their law, seems a fitting topic for a special issue that is devoted to the legal construction of markets. Here, I argue that while it may well be the case that law constitutes markets, markets are not the only way in which economic relations …

Super-Statutory Contracting, Kristelia García

Publications

The conventional wisdom is that property rules induce more—and more efficient—contracting, and that when faced with rigid property rules, intellectual property owners will contract into more flexible liability rules. A series of recent, private copyright deals show some intellectual property owners doing just the opposite: faced with statutory liability rules, they are contracting for more protection than that dictated by law, something this Article calls “super-statutory contracting”—either by opting for a stronger, more tailored liability rule, or by contracting into property rule protection. Through a series of deal analyses, this Article explores this counterintuitive phenomenon, and updates seminal thinking on …

There Oughta Be A Law: What Corporate Social Responsibility Can Teach Us About Consumer Contract Formation, Colin P. Marks

Faculty Works

This Article examines the American Law Institute’s Restatement of the Law of Consumer Contracts, with particular focus on Section 2 and its adoption of the rolling contract theory and notice-based assent to standard terms. Tracing the doctrinal roots of this approach to ProCD v. Zeidenberg and its progeny, the Article situates contemporary consumer contract formation within broader debates over assent, efficiency, and fairness in both offline and online transactions. Rather than engaging solely in doctrinal critique, the Article draws on corporate social responsibility (CSR) literature to argue that market forces alone are insufficient to regulate how businesses present standard terms …

Cullinane V. Uber Technologies, Inc., Carly Schreiber

NYLS Law Review

No abstract provided.

Caveat Emptor: Real Property Law’S “Get Out Of Jail Free” Card V. The Property Condition Disclosure Act, Alessandra E. Albano

Touro Law Review

No abstract provided.

Criminal Usury And Its Impact On New York Business Transactions, Christopher Basile

Touro Law Review

No abstract provided.

New Prime Inc. V. Oliveira: Putting The Wheels Back On The Faa’S Section 1 Exemption For Transportation Workers, Reed C. Trechter

Oklahoma Law Review

No abstract provided.

How A Good Idea Became A Bad Idea: Universities And The Use Of Non-Disclosure Agreements In Terminations For Sexual Misconduct, Julie Macfarlane

Cardozo Journal of Conflict Resolution

One of the challenges that face every third-party intervenor in a conflict is what the parties shall agree about the public nature of an agreed outcome. In private dispute resolution, in contrast to adjudication by courts, there is neither a requirement nor (with a few exceptions) a legal compulsion to reveal those outcomes, if one or more parties prefer to keep the matter private.

Smart Contracts And The Illusion Of Automated Enforcement, Danielle D'Onfro

Scholarship@WashULaw

This symposium essay explores the barriers to deploying smart contracts in the consumer finance space: the humans themselves, existing consumer protection laws, and the other businesses who have financial contracts with consumers but that cannot deploy smart contracts. These three barriers render perfectly automated enforcement all but impossible. Nevertheless, there may be room for modifiable smart contracts in the consumer financial space although these contracts may be only marginally more efficient than traditional contracts.

Mozambican Illegal Debts: Testing The Odious Debt Doctrine, Mauro Megliani

Vanderbilt Journal of Transnational Law

In June 2019, the Constitutional Council of Mozambique delivered a judgment declaring a financial transaction arranged by the government in violation of the parliamentary prerogatives in budgetary matters unconstitutional. This was only the tip of an iceberg consisting of a series of transactions tainted with corruption. In the face of this illegality, many antidebt campaigners have invoked the application of the odious debt doctrine to block the enforcement of contractual claims and the availability of restitutionary remedies. Under the odious debt doctrine, a debt is odious if, in the awareness of the creditors, it is contracted without the consent of …

Going Bare In The Law Of Assignments: When Is An Assignment Champertous?, Anthony J. Sebok

Articles

The article critiques the legal distinction between champerty and assignment, arguing that the focus should be on the assignor's motives rather than the assignee's identity. It challenges Dr. David Capper's approach to defining "bare assignments" and proposes that assignments should not be prohibited based solely on the assignee's identity unless they facilitate abus

The Ongoing Speculation About Smart Contracts: Smart Enough To Replace Third Party Arbitrators, Or Is "Smart" Just A Misnomer?, Rakhil Kalantarova

Cardozo Journal of Conflict Resolution

Although there is unmatched publicity about blockchain all over the world, the purpose of this Note is to provide a narrower insight into the fundamental importance of blockchain to the evolution of smart contracts. It will also introduce a proposition that oracles should be granted the authority to serve as arbitrators in mandatory Online Dispute Resolution ("ODR") and advise a step-by-step process to achieve that end. Section II of this Note will explore the background information and intricacies of blockchain technology, along with the realm of the purposes of smart contracts. It will also attempt to explain the benefits of …

The Case Against Equity In American Contract Law, Jody S. Kraus, Robert E. Scott

Faculty Scholarship

The American common law of contracts appears to direct courts to decide contract disputes by considering two opposing points of view: the ex ante perspective of the parties’ intent at the time of formation, and the ex post perspective of justice and fairness to the parties at the time of adjudication. Despite the black letter authority for both perspectives, the ex post perspective cannot withstand scrutiny. Contract doctrines taking the ex post perspective – such as the penalty, just compensation, and forfeiture doctrines – were created by equity in the early common law to police against abuses of the then …

The State Qui Tam To Enforce Employment Law, Andrew Elmore

Faculty Scholarship

This Article examines the states' response to Epic Systems v. Lewis, which held enforceable under the Federal Arbitration Act (FAA) mandatory arbitration agreements that require employees to waive their participation in collective and class actions in employment contracts. Recent evidence shows that mandatory arbitration can erode access to justice for and deterrence of employment law claims. States in response are considering qui tam statutes, which assign the state interests in penalties for employment law violations to private enforcers in return for a bounty, to substitute for the loss of class action enforcement after Epic Systems.

These statutes can …

Federalizing Contract Law, Stephen A. Plass

Lewis & Clark Law Review

Contract law is generally understood as state common law, supplemented by the Second Restatement of Contracts and Article 2 of the Uniform Commercial Code. It is regarded as an expression of personal liberty, anchored in the bargain and consideration model of the 19th century or classical period. However, for some time now, non-bargained or adhesion contracts have been the norm, and increasingly, the adjudication of legal rights and contractual remedies is controlled by privately determined arbitration rules. The widespread adoption of arbitral adjudication by businesses has been enthusiastically endorsed by the Supreme Court as consonant with the Federal Arbitration Act …

Should Employers Have The Ability To Enforce Non-Compete Agreements Without Also Offering A Written Employment Contract?, Rowan Reid

Kentucky Law Journal

No abstract provided.

Equity In American And Jewish Law, Itzchak E. Kornfeld , Ph.D.

Touro Law Review

No abstract provided.

Consumer Activism: From The Informed Minority To The Crusading Minority, Yonathan A. Arbel, Roy Shapira

Articles

Legal scholars have long recognized that market norms are respected not only because of consumer protection laws, but also because of internal market dynamics. Consumers, the argument goes, fend for themselves and hold sellers accountable. But how exactly do consumers discipline sellers? The most influential model has been the informed minority theory, according to which a critical mass of informed consumers reads and negotiates contracts in advance, thereby pressuring sellers to offer better contracts to all consumers. Recent empirical studies, however, cast doubt on the existence of such a mass, leading many to view the informed minority theory as unrealistic. …

Tuition As A Fraudulent Transfer, David G. Carlson

Articles

Bankruptcy trustees are suing universities because the insolvent parent of an adult student has written a tuition check while insolvent. The theory is that the university is the initial transferee of a fraudulent transfer that has provided benefit to the student but not to the parent debtor. This article claims that the university is never the initial transferee of tuition dollars. Rather, the student is. Where the university has no knowledge of parent insolvency, the university can count educating the student as a good faith transfer for value, thus immunizing the university from liability. The unpleasant side effect is that …