Contracts Commons^™

The Private Law Of Stablecoins, Kara J. Bruce, Christopher K. Odinet, Andrea Tosato

Faculty Scholarship

Stablecoins are one of the cornerstones of the crypto world. They’ve attracted significant attention over the past few years, ranging from Wall Street to kitchen table investors, and even the White House. As a less volatile alternative to crypto-assets like bitcoin, stablecoins have the potential to change the way we make payments, unlock the groundwork needed for more blockchain-based applications, and even reorient the economy toward private money. But how stable are these stablecoins, really? Can they be relied upon in the way their many proponents claim? And how much of the popular beliefs about stablecoins match their realities? That’s …

Arbitration And Finra's Customer Code: A Tailored Approach To When A Forum Selection Clause May Supersede Finra Rule 12200, Peter Giovine

Fordham Law Review

This Note examines a circuit split concerning whether forum selection clauses supersede Financial Industry Regulatory Authority (FINRA) Rule 12200, which requires FINRA members to arbitrate customer disputes upon the customer’s request. The U.S. Courts of Appeals for the Second and Ninth Circuits have upheld a waiver of the right to arbitrate even when arbitration is not explicitly mentioned in a forum selection clause. The U.S. Courts of Appeals for the Third and Fourth Circuits, on the other hand, have held that a forum selection clause that does not explicitly mention arbitration does not supersede FINRA Rule 12200. This Note explores …

Commercial Law Harmonization: The Past As Prologue—A “Festschrift” In Honor Of Neil B. Cohen, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

No abstract provided.

Reviving The Realist Restatements And The Common Law Codes: Neil Cohen And The Grand Style, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

The “Second” Restatements and the Uniform Commercial Code have shaped the sensibility of lawyers and law students for the last half century. Both projects were anti-formal at their core, articulating pragmatic principles to guide judicial decision making without necessarily determining the outcome. Recent jurisprudence interpreting the Restatements, as well as efforts to update both sets of instruments, have taken a formalist turn. As examples, this essay will consider judicial interpretations of § 402A of the Restatement (Second) of Torts where internet platforms like Amazon are involved. Then it will consider the tortured and recently concluded experience in connection with the …

Formulating Lists Of Factors: Lessons From The Good, The Bad, And The U.C.C., Stephen L. Sepinuck

Brooklyn Journal of Corporate, Financial & Commercial Law

No abstract provided.

Failed Efforts At Harmonization Of Securities Regulation, Roberta S. Karmel

Brooklyn Journal of Corporate, Financial & Commercial Law

This Article is based on a speech made by Professor Karmel at the Brooklyn Journal of Corporate, Financial, & Commercial Law annual symposium in May 2022 titled “Commercial Law Harmonization: Past as Prologue,” analyzing the work done in the past half-century to balance commercial law. The symposium also celebrated the career of Neil B. Cohen of Brooklyn Law School for his teaching and participation in law reform efforts.

Flow Of Commerce, Flow Of Traffic, Carl S. Bjerre

Brooklyn Journal of Corporate, Financial & Commercial Law

No abstract provided.

The Development Of The American “Security Interest” And Its Effect On The International Harmonization Of Security Rights, Henry Gabriel

Brooklyn Journal of Corporate, Financial & Commercial Law

No abstract provided.

Contracts Scholarship Beyond Materialisierung, Daniela Caruso

Faculty Scholarship

This comment aims to show how Klaus Eller's paper on ‘The Political Economy of Tenancy Contract Law raises the stakes of private law scholarship and contributes to the larger project of remodeling legal institutions in a progressive direction. The comment starts by contextualising the rapid spread of the Law and Political Economy (LPE) movement; illustrates through examples the generative impact of LPE on contemporary contracts scholarship; and highlights two strands of Eller’s original contribution to such literature: a welcome reflection on the value and limits of Materialisierung, and a radical widening of the private law inquiry to include institutional …

International Commercial Mediation And Dispute Resolution Contracts, Nadja Alexander, Natasha Tunkel

Research Collection Yong Pung How School Of Law

Every transaction has the potential to go wrong and international commercial contracts are not spared this plight. It is when an international commercial contract fails – irrespective of the reasons, that the impact of different legal and cultural backgrounds of the parties come to light. The obvious venue for commercial disputes to be decided is generally understood to be in court (litigation)2 or before an arbitral tribunal (arbitration)3. However, there are numerous other alternative dispute mechanisms4 available to parties that are less well known and also deserve consideration; not least because they offer parties methods of resolving the dispute between …

The “Rarely Discussed And More Rarely Applied” Antitrust Implications Of Contractual Releases Of Antitrust Liability, With A Modest Proposal, Jared S. Sunshine

Ohio Northern University Law Review

No abstract provided.

H.J. Russell & Company, Order Granting With Prejudice Defendants' Join Motion To Dismiss, Wesley B. Tailor

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

Troy Welker And Min Turner V. Mimedx Group, Inc., Et Al., Order On Motions To Dismiss, John J. Goger

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

Standard Chartered Bank Plc V Celine Meena Nair [2019] Zmca 221, Ntemena Mwanamwambwa, Milambo Chibbonta-Pupwe

SAIPAR Case Review

This case is one of a kind and therefore significant for several reasons in the jurisprudence of Zambian Employment Law. The case highlights that the employer-employee relationship is one founded on the implied term of mutual trust and confidence which entails that both parties must accord each other due trust and respect regardless of status.

The decision in this case, sets a clear and stern tone in cases of constructive dismissal bordering on toxicity within the working environment. Thus, employers are put on notice to adhere to their own grievance procedures particularly in cases involving bullying, harassment and victimization such …

Third-Party Beneficiaries Of Government Contracts: Imagining An Equitable Approach And Applying It To Broken Promises In Detroit, Gabe Chess

Michigan Law Review

Courts have widely adopted a heightened standard for recognizing third-party beneficiaries of government contracts. But the justifications offered for the heightened standard do not withstand scrutiny. Instead, courts should apply a series of equitable factors to produce results consistent with the concern for “manifest justice” that animates third-party beneficiary doctrine. Governments make contracts frequently, often to address issues of huge importance to their citizens, including housing, economic development, and healthcare. In each of these areas, third-party beneficiary doctrine may be an important avenue of relief to citizens harmed by broken promises and may encourage the government and its contracting partners …

Eva Chiboni V. New Future Finance Company Limited 2020/Hpc/0776, Chanda Chungu

SAIPAR Case Review

The decision in Eva Chiboni has been seen by some as a victory for vulnerable groups of people in Zambia, compared to bigger entities that do at time take advantage of parties with less bargaining powers. However, as this article has demonstrated, it reached an outcome not supported by principles of law, particularly those relating to the need to provide lucid and clear evidence of a vitiating factor or illegality to declare a contract null and void.

Zambia Electronic Clearing House Limited V. James Kalengo Caz Appeal No. 239 Of 2020, Chanda Chungu

SAIPAR Case Review

The Court of Appeal’s decision in James Kalengo is crucial because it demonstrates that the concept of a legitimate expectation of renewal, as a principle and concept exists under Zambian employment law. Whilst an employer does retain the discretion to renew a contract of employment or not when it is due to expire, an employee may have a legitimate expectation of renewal if there is any past practice, prior promise or bad faith/mala fides in relation to the renewal.

Mark Tink And Others V. Lumwana Mining Company Limited Caz Appeal No. 41/2021, Chanda Chungu

SAIPAR Case Review

The decision in Mark Tink and Others v. Lumwana Mining Company Limited is an important decision because it clarifies and restates that law that a valid reason, that is substantiated is required when an employer initiates termination of the contract of employment.

This article critiques the approach of the Court of Appeal as it relates to the award of damages. This article seeks to provide clarity as it relates to the award of damages, particularly the way is granted and justified. It is suggested that when the opportunity arises either the Court of Appeal or the Supreme Court should revise …

Boba Fett, Bounty Hunters, And The Supreme Court’S Viking River Decision: A New Hope, Imre S. Szalai

Washington and Lee Law Review Online

The United States Supreme Court recently issued a fractured decision in Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (June 15, 2022), a classic David v. Goliath clash between a worker and employer. Can arbitration agreements be used to eliminate group or representative actions brought against employers, where the plaintiff worker is serving as a bounty hunter for the State? Although the majority clearly holds that a worker’s individual claims must be sent to arbitration pursuant to a predispute arbitration agreement, the splintered opinions leave some uncertainty regarding what happens to the representative claims of the other …

The Flaws Of Magic Bullet Theory: Retraining Unconscionability To Discretely Target Different Contexts Of Unfairness In Contracts, Marcus Moore

All Faculty Publications

Unconscionability has long been a troublesome area in Canadian jurisprudence. This is of significant concern given unconscionability’s pre-eminence as a protection of contractual fairness. This article elaborates a much-needed reorganization and rationalization of unconscionability in Canada. Under current law, a single doctrine hopelessly targets two divergent purposes. I set out here a proposed redevelopment rather of separate common law doctrines, each fit-for-purpose: (1) An English-style unconscionable bargains doctrine for avoiding bargains that exploited disability, and (2) an American-style unconscionable clauses doctrine to control unfair terms in standard form contracts. Extensive Canadian precedent supports this solution, assuring its feasibility and legitimacy. …

The Flaws Of Magic Bullet Theory: Retraining Unconscionability To Discretely Target Different Contexts Of Unfairness In Contracts, Marcus Moore Dr.

Dalhousie Law Journal

Unconscionability has long been a troublesome area in Canadian jurisprudence. This is of significant concern given unconscionability’s pre-eminence as a protection of contractual fairness. This article elaborates a much-needed reorganization and rationalization of unconscionability in Canada. Under current law, a single doctrine hopelessly targets two divergent purposes. I set out here a proposed redevelopment rather of separate common law doctrines, each fit-for-purpose: (1) An English-style unconscionable bargains doctrine for avoiding bargains that exploited disability, and (2) an American-style unconscionable clauses doctrine to control unfair terms in standard form contracts. Extensive Canadian precedent supports this solution, assuring its feasibility and legitimacy. …

Systemic Risk Of Contract, Tal Kastner

BYU Law Review

Complexity and uncertainty define our world, now more than ever. Scholars and practitioners have celebrated modular contract design as an especially effective tool to manage these challenges. Modularity divides complex structures into relatively discrete, independent components with simple connections. The benefits of this fundamental drafting approach are intuitive. Lawyers divide contracts into sections and provisions to make them easier to understand and reduce uncertainty. Dealmakers constructing complex transactions use portable agreements as building blocks to reduce drafting costs and enable innovation. Little attention, however, has been paid to the risks introduced by modularity in contracts. This Article demonstrates how this …

Efektivitas Alat Bukti Dalam Pembuktian Suatu Perjanjian Lisan, Aaron Pietter

Lex Patrimonium

Verbal agreement is something that cannot be separated in our daily life. It is confirmed that in every moment we always make a verbal agreement consciously or unconsciously. Within the scope of the court, verbal agreement is also used by the parties to prove their arguments so they can earn their rights and fullfill the other party obligations. Compared to the other type of evidence, verbal agreement have its own power and effectiveness level when being used as a legitive evidence before the court. To observe about the application and effectiveness of a verbal agreement as a legitive evidence before …

Perlindungan Hukum Bagi Kreditur Dalam Eksekusi Perjanjian Kredit Dengan Jaminan Hak Tanggungan, Muhammad Affandi

Lex Patrimonium

One of the guarantees in the credit agreement is a mortgage guarantee, where in the mortgage guarantee agreement, the assets guaranteed by the debtor to be used as collateral are land rights which can be in the form of buildings, plants, and works that already exist or will exist which are one unit with the land, and which belongs to the holder of the land rights whose burden is expressly stated in the Deed of Granting Mortgage concerned. From this study, the author aims to examine how legal protection for creditors in the execution of credit agreements with collateral rights …

Perlindungan Hukum Kreditur Terhadap Peralihan Jaminan Hak Tanggungan Dalam Jual Beli Piutang Melalui Cessie (Studi Kasus: Putusan Pengadilan Negeri Nomor 79/Pdt.G/2019 Pn Tab Dan Putusan Peninjauan Kembali Nomor 754 Pk/Pdt/2011), Vanessa Maurizkha

Lex Patrimonium

Banks act as creditors for selling receivables through a cessie to credit. Problems that arise after the transfer of receivables are identical to the relevance of the validity of the cessie to the mortgage guarantee transfer stipulated in the main agreement. There are differences in the legal concequences in each conditions. The problems discussed in this research are the mechanism through a cessie in conventional banks according to Indonesian law, the development of the regulation on registration of transfer of mortgage, and the legal consequences of the act (cessie) on objects of mortgage guarantee based on the District Court Decision …

Tinjauan Yuridis Pengesahan Anak Luar Kawin Yang Dicatatkan Setelah Ayah Dari Anak Meninggal Dunia (Studi Kasus: Penetapan Pengadilan Negeri Jakarta Pusat Nomor: 36/Pdt.P/2020/Pn.Jkt.Pst.), Devina Delfian

Lex Patrimonium

The birth of a child from an unregistered polygamous marriage according to the prevailing laws is a juridical phenomenon that cannot be denied. As the part of legal events, unregistered polygamous marriages can bring further legal consequences to children born out of wedlock, which in law children born out of wedlock have a lower position than children born from legal marriages. Because of these differences, the law provides a solution for children born out of wedlock to have the same legal status as children born from legal marriages, namely through child legalization. This research will be continued by focusing on …

Perlawanan Pihak Ketiga Sebagai Pemilik Benda Terhadap Benda Yang Dijadikan Jaminan Fidusia Tanpa Persetujuan Pemilik Benda (Studi Kasus: Putusan Mahkamah Agung 1012 K/Pdt/2021), Aditya Nabilah Lubis

Lex Patrimonium

Property rights that have been specifically and comprehensively regulated in the Civil Code in Indonesia give the impression that the principle of property rights has been perfectly regulated, but in practice there are still gaps in the owner's rights to objects that are guaranteed not being protected properly. This thesis will discuss the problems caused by objects that are used as fiduciary guarantees in a credit agreement without the knowledge of the owner of the object (by committing fraud) as well as legal protection that can be given to the owner of the object and creditors who receive fiduciary guarantees …

Analisis Terhadap Kesepakatan Lisan Untuk Menjalankan Waralaba Sesuai Dengan Perjanjian Waralaba Yang Telah Berakhir (Studi Kasus Putusan Nomor 52/Pdt.G/2019 Jo. Putusan Nomor 396/Pdt/2021/Pt Dki, Fahira Zahara Ghassani

Lex Patrimonium

Franchising is a business system that makes it easy for entrepreneurs to expand their marketing. Therefore, before running a franchise business, the parties must make a franchise agreement that aims to protect the interests of the parties properly. A franchise agreement made in written form can be the basis or evidence if one of the parties defaults. However, there are still franchise businesses that make agreements in the form of unwritten or verbal actors, even though PP 42/2007 and Permendag 71/2019 require written agreements. This is what becomes between the franchisor and the franchisees involved in the franchise business as …

"Pemanfaatan Barang Milik Daerah Kabupaten Penajam Paser Utara (Studi Kasus Penyerahan Pengelolaan Sisi Darat Pelabuhan Buluminung)", Melindya Santoso Putri

Lex Patrimonium

The Regent as the Regional Head in the North Penajam Paser Regency should carry out Regional Property Management (BMD). With the existence of five forms of utilization in the form of rental, borrowing, utilization cooperation, building to handover or building handover, and cooperation in providing infrastructure based on PP 27/2014, PP 28/2020, Permendagri 19/2016, Pemda Penajam Paser North 11/2018. A port is a place consisting of land and or waters with certain boundaries as a place for government and company activities. There is a legal problem, namely in the transition of the Management of the Land Side of the Buluminung …

Perbandingan Hukum Pemutusan Surat Kuasa Secara Sepihak Antara Indonesia Dan Belanda Sebagai Bentuk Wanprestasi (Studi Putusan Nomor 704/Pdt.G2017/Pn.Mdn), Karsten Maruli Rogate Hutauruk

Lex Patrimonium

The power of attorney agreement is commonly found in dealing with a legal problem that carried out by the community, both in Indonesia and the Netherlands. In Indonesia the Power of Attorney Agreement, is regulated in Articles 1823 and 1814 of the Book of Civil Law which states that the Principal could revoke power of attorney at any time, but turns out that in practice there is Power of Attorney that can not be revoked called Irrevocable Power of Attorney. Regulated in the Instruction of the Internal Affairs Minister No. 14/1982 and Government Regulation No. 24 of 1997 that regulate …