Contracts Commons^™

Contracts, Victor P. Goldberg

Faculty Scholarship

This article focuses on the general problems confronting parties designing a contractual relationship. Contracts concern the future, which is both uncertain and influenced by the behavior of the parties. This presents the parties with a number of problems, the solutions for which are imperfect. Contract doctrine can facilitate their efforts, but it can also be an impediment. Contract design and contract law are discussed.

Metaphors, Models, And Meaning In Contract Law, Jeffrey M. Lipshaw

Suffolk University Law School Faculty Works

Why does there seem to be such a wide gap between the subject matter of the usual first-year contracts course and what practitioners (particularly transactional lawyers) actually experience? This article is an attempt to bridge the gap, combining insights from academic theory and real-world law practice. My claim is that the law as discipline has developed its own powerful but self-contained conceptual framework — in the coinage of one noted scholar, “an epistemic trap.” The subject matter of contract law, something that is largely the creation of private parties and not the state, requires dealing with legal truth not just …

"Do-Not-Track" As Contract, Joshua A.T. Fairfield

Vanderbilt Journal of Entertainment & Technology Law

Support for enforcement of a do-not-track option in browsers has been gathering steam. Such an option presents a simple method for consumers to protect their privacy. The problem is how to enforce this choice. The Federal Trade Commission (FTC) could enforce a do-not-track option in a consumer browser under its section 5 powers. The FTC, however, currently appears to lack the political will to do so. Moreover, the FTC cannot follow the model of its successful do-not-call list since the majority of Internet service providers (ISPs) assign Internet addresses dynamically--telephone numbers do not change, whereas Internet protocol (IP) addresses may …

A Short And Happy Guide To Contracts, David G. Epstein

Law Faculty Publications

In this book we will reveal the rules of contract law in as straightforward and clear a fashion as they permit. But we will also talk some about policy and the difference between the two. Policy reflects the normative objectives we want to attain, and the rules are the vehicles for getting us there. In this book, we are going to break the subject of contracts into seven short questions: 1. Has a deal been made? 2. Is the deal enforceable? 3. Are there defenses to enforcement of the deal? 4 What are the terms of the deal? 5. When …

Cross Purposes & Unintended Consequences: Karl Llewellyn, Article 2, And The Limits Of Social Transformation, Danielle Kie Hart

Nevada Law Journal

Despite attempts to reform the law to eliminate hierarchies that subordinate groups of people, the law usually ends up re-instantiating those hierarchies. This “preservation through transformation” phenomenon occurs consistently, over time and across legal disciplines. Karl Llewellyn’s efforts at drafting Article 2 of the Uniform Commercial Code are no different. Llewellyn attempted a paradigm shift in contract formation when he sought to decouple contract law from its formalistic roots and bring it back in touch with reality. But in so doing, the law-in-action strand of Legal Realism ended up working at cross purposes with the other, critical strand of Realism. …

Slides: Collaborative Planning And Lessons Learned, Matt Sura

Best Management Practices (BMPs): What? How? And Why? (May 26)

Presenter: Matt Sura, University of Colorado Law School

48 slides

Strategic Default: The Popularization Of A Debate Among Contract Scholars, Meredith R. Miller

Scholarly Works

A June 2010 report estimates that roughly 20% of mortgage defaults in the first half of 2009 were “strategic.” “Strategic default” describes the situation where a home borrower has the financial ability to continue to pay her mortgage but chooses not to pay and walks away. The ubiquity of strategic default has lead to innumerable newspaper articles, blog posts, website comments and editorial musings on the morality of homeowners who can afford to pay but choose, instead, to walk away. This Article centers on the current public discourse concerning strategic default, which mirrors a continuing debate among scholars regarding whether …

Justice, Employment, And The Psychological Contract, Larry A. Dimatteo, Robert C. Bird, Jason A. Colquitt

UF Law Faculty Publications

The paper is a multidisciplinary collaboration between contract law, employment law and management scholars and draws from the fields of law, management, and psychology. After reviewing and noting the gaps in the employment and justice literatures, this paper presents the findings of a survey of 763 participants to measure whether certain variables—procedural and substantive fairness, as well as educating employees on the principle of employment at will—impact the propensities of employees to retaliate and litigate at the time of discharge.

The survey results are significant and striking. We find statistically significant reductions in retaliation and litigation rates when survey respondents …

Teaching Gender As A Core Value In The Firstyear Contracts Class, Kerri Lynn Stone

Faculty Publications

No abstract provided.

Traynor (Drennan) Versus Hand (Baird): Much Ado About (Almost) Nothing, Victor P. Goldberg

Faculty Scholarship

Most Contracts casebooks feature either Baird v. Gimbel or Drennan v. Star Paving to illustrate the limits on revocability of an offer. In this article an analysis of the case law yields three major conclusions. First, as is generally known, in the contractor-subcontractor cases Drennan has prevailed. However, both it and its spawn, Restatement 2d E 87(2), have had almost no impact outside that narrow area. Moreover, almost all the cases involve public construction projects – private projects account for only about ten percent of the cases. This suggests that private parties have managed to resolve the problem contractually. Public …

Contracts In Context And Contracts As Context, Larry A. Dimatteo, Blake D. Morant

UF Law Faculty Publications

The annual Business Law Symposium of the Wake Forest Law Review has a distinguished legacy of noteworthy programs that shed light on seminal issues affecting contemporary business in the United States. This edition builds on that tradition of excellence with a focus on the ubiquitous phenomenon of contracts and bargaining behavior. Contract law appears as a set of policies and rules that provide order for those who transact bargains. Indeed, contract law and the rules that it engenders seemingly facilitate an efficient system of transactional conduct that, on its face, appears objective.

Part II of this introductory Article briefly examines …

2009 Government Contract Law Decisions Of The Federal Circuit, Daniel P. Graham, Jon Burd, Tracye Winfrey Howard, Brian Walsh, W. Barron A. Avery

American University Law Review

No abstract provided.

The Promissory Character Of Adequate Assurances Of Performance, Michael J. Borden

Law Faculty Articles and Essays

Part I provides the reader with an account of the development of the doctrine of adequate assurances from its earliest roots in the doctrine of anticipatory repudiation. Part II explains the workings of the modern doctrine in the context of a recent case. In Part III, I argue that promises made in response to a demand for adequate assurances can be understood as a class of enforceable promises. In Parts IV and V, I attempt to work out the back-end consequences that would result from treating assurances as enforceable promises.

Rethinking Mistake And Nondisclosure In Contract Law, Jeffrey L. Harrison

UF Law Faculty Publications

This Article reconsiders the analysis of the disclosure/nondisclosure issue. Part I of this Article elaborates on the basic model and some of the complexities of identifying the actual impact of nondisclosure. Part II details the social costs of the default nondisclosure rule. In Part III, a case is made that concepts like "mistake" and "defect," both "patent" and "latent," unnecessarily retard allocative efficiency by limiting what must be disclosed. In Part IV, alternatives to the default nondisclosure rule are examined in the context of several cases, some of which have been used to illustrate the virtues of the default rule.

Excuse Doctrine: The Eisenberg Uncertainty Principle, Victor P. Goldberg

Faculty Scholarship

The world is in a bit of a mess. Oil prices soared to more than $140 per barrel and within months plummeted to below $40. The pound fell from $2 to less than $1.40. Housing and stock prices crashed. Foreclosures, bankruptcies, and bailouts became newspaper staples. When things go awry like this, inevitably many people and firms regret having entered into contracts under more favorable circumstances. Many of them will be looking for ways to limit, or better yet, avoid the consequences. A preeminent contracts scholar, Melvin Eisenberg (2009), has provided them with considerable ammunition in a recent paper, arguing …

A Patent Panacea?: The Promise Of Corbinized Claim Construction, Jonathan L. Moore

Law Student Publications

A patent's claims define the scope of a patent-holder's right to exclude others. Because patent infringement actions often hinge on how a court construes claim terms, the interpretative approach that a court uses has a significant effect on the scope ofpatent rights. This article examines claim construction through the lens of contract law. In theory, the Federal Circuit has explicitly rejected the application of contract interpretation principles to claim construction, despite historical acceptance of the patent-contract analogy. In practice, however, the Federal Circuit applies the theory of contract interpretation espoused by Samuel Williston, a theory that focuses on the text …

Updating The Electronic Transactions Act? Australia's Accession To The Un Convention On The Use Of Electronic Communications In International Contracts 2005, Eliza Karolina Mik

Research Collection Yong Pung How School Of Law

This article discusses the Australian Government’s proposal to accede to the United Nations Convention on the Use of Electronic Communications in International Contracts as well as certain amendments to existing Australian electronic transactions legislation, i.e. the Electronic Transactions Act (Commonwealth) 1999 (”ETA”) and its state equivalents. Without going into a detailed discussion of all suggested amendments, this article focuses on those recommendations, which affect the area of contract formation, in particular: the use of automated systems in on-line transactions and the determination of the time the contract comes into existence. A critical review of the proposed changes reveals that their …

The Effectiveness Of Acceptances Communicated By Electronic Means, Or – Does The Postal Acceptance Rule Apply To Email, Eliza Mik

Research Collection Yong Pung How School Of Law

The ‘traditional’ classi?cation into ‘instantaneous’ and ‘non-instantaneous’ methods of communication must be abandoned. As all Internet transmissions are instantaneous, the choice between the principle of receipt and the postal exception must be based on other criteria. The focus must be shifted from communication devices to the characteristics of the communication process. The latter resembles either dealings face-to-face or dealings at a distance. This simple division should remain the basis for all analyses. Instantaneity and control are two of many characteristics of face-to-face dealings and are not the only factors to be taken into account when making the choice between the …

Contract Design And The Structure Of Contractual Intent, Jody S. Kraus, Robert E. Scott

Faculty Scholarship

Modern contract law is governed by a two-stage adjudicative regime – an inheritance of the centuries-old conflict between law and equity. Under this regime, formal contract terms are treated as prima facie provisions that courts can override by invoking equitable doctrines so as to substantially "correct" the parties' contract by realigning it with their contractual intent. This ex post judicial determination of the contractual obligation serves as a fallback mechanism for vindicating the parties' contractual intent whenever the formal contract terms fall short of achieving the parties' purposes. Honoring the contractual intent of the parties is thus the central objective …

We're Friends, Right? Client List Misappropriation And Online Social Networking In The Workplace, Brian V. Wyk

Vanderbilt Journal of Entertainment & Technology Law

Social networks, such as Facebook, MySpace, and LinkedIn have grown tremendously over the past decade, and today they claim over 200 million users between the three services. A great number of smaller social networks have also appeared, and new services are constantly being created. With the vast growth of social networking has come the use of social networking in business. As businesses have sought to exploit the wealth of information that social network users share over these networks, businesses have encountered the problem of protecting the compilations of information they have produced. The problem became clear in 2008 when a …

Who Monitors The Monitor? Virtual World Governance And The Failure Of Contract Law Remedies In Virtual Worlds, Hannah Yeefen Lim

Vanderbilt Journal of Entertainment & Technology Law

This Article is a study of the interaction of rules and contractual terms within the context of fraudulent conduct in virtual worlds. It makes two main arguments: first, that virtual world providers cannot generally be trusted to regulate themselves; and second, that contractual remedies alone do not provide players with useful solutions to player disputes. The Article highlights the shortcomings of relying solely on the existing web of contractual documents to resolve the issues and disputes currently experienced in virtual world communities. Starting with the applicability of real-world laws to virtual worlds, this Article examines a case study that demonstrates …

Bargaining Power And Background Law, Nancy S. Kim

Vanderbilt Journal of Entertainment & Technology Law

Power in contract law typically refers to the bargaining strength of each contracting party in relation to the other. In assessing the relative bargaining power of each party, courts and commentators often consider factors specific to the parties, such as socio-economic status and education level. In this Essay, I suggest another factor that affects the power of the parties in negotiating or modifying their agreement, one that I refer to as the "background law." The background law is the substantive law that governs the subject matter of the contract. This Essay focuses specifically on the background law of copyrights and …

Mistake And Disclosure In A Model Of Two-Sided Informational Inputs, Michael J. Borden

Law Faculty Articles and Essays

This paper will examine some theoretical aspects of contractual non-disclosure and the related doctrine of unilateral mistake. These two legal rubrics are conceptually similar; each is concerned with the degree to which parties must communicate their understandings about the nature of the contract into which they are about to enter. If one party fails to reveal enough information, the other party may enter into the agreement under a misunderstanding and consequently may attempt to avoid contractual liability on the basis of mistake or on a theory of nondisclosure. The law of contracts clearly attaches a great deal of importance to …

Uncertainty, Reliance, Preliminary Negotiations And The Hold Up Problem, Juliet P. Kostritsky

Faculty Publications

Recently, two scholars, Alan Schwartz and Robert Scott, have cast doubt on the conventional view that courts would find liability and award reliance damages in precontractual cases that resembled the famous Hoffman v. Red Owl case. They have argued that courts deny recovery for reliance in cases involving precontractual preliminary negotiation but regularly grant reliance recovery following a preliminary agreement. They identify a pattern or sequence in which success is likely and then provide an analytical framework to justify liability. When parties reach a preliminary agreement that also includes an agreement that they both invest simultaneously and one party strategically …

Incidental Findings: A Common Law Approach, Stacey A. Tovino

Scholarly Works

Federal regulations governing human subjects research do not address key questions raised by incidental neuroimaging findings, including the scope of a researcher’s disclosure with respect to the possibility of incidental findings and the question whether a researcher has an affirmative legal duty to seek, detect, and report incidental findings. The scope of researcher duties may, however, be mapped with reference to common law doctrine, including fiduciary, tort, contract, and bailment theories of liability.

"Arbitration As A Final Award: Challenges And Enforcement" Published As Chapter 10 In International Sales Law And Arbitration: Problems, Cases, And Commentary, Jack M. Graves, Joseph F. Morrissey

Scholarly Works

No abstract provided.

Comment: On Contractual Defaults And Experimental Law And Economics, Avishalom Tor

Journal Articles

It is possible that contract default rules, whose relevance is contingent upon parties' agreement to contract, differ from other default states. Parties therefore might not perceive contingent contractual defaults as relevant reference points. Ironically, however, Sloof, Oosterbeek and Sonnemans' (SOS) "default contract" applied inevitably whenever proposed and whenever Respondents rejected a non-default proposal, bearing greater resemblance to a legal right than to a contractual default. Thus, the contingency of typical contractual defaults cannot account for the No Bias Finding. Other aspects of the SOS experimental design, on the other hand, may explain the No Bias Finding.

Colloquy, Transactional Economics: Victor Goldberg’S Framing Contract Law, Keith A. Rowley, Mark P. Gergen, Victor Goldberg, Stewart Mcaulay

Scholarly Works

Panel discussion among law faculty who teach contracts of 2007 book authored by Victor Goldberg, which suggests that an economic approach to contract interpretation is appropriate.

Transactional Economics: Victor Goldberg's Framing Contract Law, Mark P. Gergen, Victor P. Goldberg, Stewart Macaulay, Keith A. Rowley

Faculty Scholarship

Professor Mark Gergen: Thank you. It is an honor to speak to this group and to be on a panel with Stewart Macaulay, Keith Rowley, and Victor Goldberg. I have an enormous amount of respect for the three. Keith had the misfortune of being a student of mine in Federal Income Tax.

Framing Contract Law offers a wealth of information about familiar cases. Victor argues that in construing contracts, courts should be attentive to how people engineer contracts to minimize transaction costs. He shows that courts often err in this regard, imposing unnecessary costs. To make his case, Victor delves …

A Critique Of The Efficient Performance Hypothesis, Jody S. Kraus

Faculty Scholarship

The classic economic justification of contract law’s default remedy of expectation damages is grounded on the efficient breach hypothesis: that promisors should be permitted and encouraged to breach when the net gains from breach exceed the net gains from performance. Expectation damages ensure that all and only efficient breaches will occur because promisors will find breach profitable only if its benefits exceed the value of performance to the promisee. The efficient breach hypothesis, and the defense of expectation damages that rests on it, has long been criticized for being inconsistent with the moral intuition that promisors necessarily forfeit their right …