Contracts Commons^™

Good Faith: A New Look At An Old Doctrine, Robert S. Adler, Richard A. Mann

Akron Law Review

In this article we sketch the basic contours of the contractual policing devices that apply to special relationships and to arm's length transactions. We then explicate in greater detail the duty of good faith under general contract law and the Uniform Commercial Code. Finally, we explore some strategies for shortening arm's length transactions through consensual extensions of the duty of good faith.

Contractual Choice Of Law In Contracts Of Adhesion And Party Autonomy, Mo Zhang

Akron Law Review

The article attempts to argue that contracts of adhesion do not conform to the notion of autonomy that underlies the choice of law by the parties and is incompatible with the principle of mutuality on which the power of the parties to make the choice of applicable law rests. The main theme of the article is to suggest that the choice of law clause in contracts of adhesion shall not take effect (although the clause may not necessarily be invalid), unless and until the other party (adherent) meaningfully agrees or a court scrutinizes the contract for the true assent of …

Franchise And Contract Asymmetry: A Common Trans-Atlantic Agenda?, Tibor Tajti

Loyola of Los Angeles International and Comparative Law Review

Normative legal theories, no matter whether pluralist or monist, tend to formulate what the law should be. Based on what values, either on a purely theoretical plane, or based on a single or a few paradigm contracts – the contours of which seem to be most solidified according to common opinion – like sales contracts. They fail, however, to answer the query about what happens in cases of newer-generation contracts, such as franchise contracts, one of the quintessential features of which is information and strategic asymmetry. The basic premise of this article is that given the European popularity of business …

Foreign And Religious Family Law: Comity, Contract, And The Constitution, Ann Laquer Estin

Pepperdine Law Review

The article focuses on role of the U.S. courts in confronting religious laws in dispute resolution of various cases of domestic relations, contracts, and torts. Topics discussed include role of secular courts in maintaining constitutional balance between the free exercise and establishment clauses, constitutional challenges faced by religious adherents, and importance of legal pluralism in the U.S.

Constructive Ambiguity: Ip Licenses As A Case Study, Michal Shur-Ofry, Ofer Tur-Sinai

University of Michigan Journal of Law Reform

Ambiguity in contracts is often perceived as undesirable. A certain level of ambiguity, however, can have significant virtues: reducing transaction costs associated with foreseeing and negotiating remote contingencies; facilitating the closing of efficient transactions that would not otherwise close; increasing the adaptability and “anti-fragility” of contracts in the face of unforeseen developments; and preserving trust between the parties. Some contracts are more likely to benefit from a certain degree of ambiguity. Relying on multi-disciplinary literature, this Article systematically analyzes ambiguity’s merits and identifies three principal features of transactions that are positively correlated to the virtues of ambiguity: (1) long duration, …

Prove Me Wrong Cases And Consideration Theory, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Mixed Transactions For Goods And Services: The Need For Consistency In Choosing The Governing Law, Austin Bodnar

St. Thomas Law Review

Imagine you are about to lose your home insurance after your provider contacted you stating that all homes with a pool are required to have a fence around the property. You quickly find a company that sells and installs fences and enter into a contract with them. You pay a fortune for the fence, but your insurance is saved. Shortly thereafter, the fence proves to be faulty, and the company refuses to fix the problem. Now, you sue under certain warranties that are provided by the Uniform Commercial Code ("U.C.C."), but the court finds that the U.C.C. does not apply …

Contract Law And Fundamental Legal Conceptions: An Application Of Hohfeldian Terminology To Contract Doctrine, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

A Contract Theory Of Academic Freedom, Philip Lee

Faculty Publications

(Excerpt)

Academic freedom is central to the core role of professors in a free society. Yet, current First Amendment protections exist to protect academic institutions, not the academics themselves. For example, in Urofsky v. Gilmore, six professors employed by various public colleges and universities in Virginia challenged a law restricting state employees from accessing sexually explicit material on computers owned or leased by the state. The professors claimed, in part, that such a restriction was in violation of their First Amendment academic freedom rights to conduct scholarly research. The Fourth Circuit upheld the law and noted that “to the …

Was Singapore Airlines Liable For Business-Class Seats Sold At Economy Rates?, Yihan Goh

Research Collection Yong Pung How School Of Law

Much has been reported about Singapore Airlines (“SIA”) mistakenly charging economy rates for around 900 business-class seats due to a computer input error. Yesterday, SIA said that it would honour those tickets at economy rates, reversing its previous position that it would not, and closing the episode on a note of goodwill. This blog entry explores the legal analysis behind the episode on the assumption that Singapore contract law applies, so as to maintain its general relevance to a Singaporean audience and its specific application to online retailers concerned about making similar pricing errors. Of course, the analysis would differ …

Do You Believe He Can Fly? Royce White And Reasonable Accommodations Under The Americans With Disabilities Act For Nba Players With Anxiety Disorder And Fear Of Flying, Michael A. Mccann

Pepperdine Law Review

This Article examines the legal ramifications of Royce White, a basketball player with general anxiety disorder and obsessive compulsive disorder, playing in the NBA. White's conditions cause him to have a fear of flying, thus making it difficult to play in the NBA. This subject is without precedent in sports law and, because of the unique aspects of an NBA playing career, lacks clear analogy to other employment circumstances. This dispute also illuminates broader legal and policy issues in the relationship between employment and mental illness. This Article argues that White would likely fail in a lawsuit against an NBA …

Say What? The Resolution Of Ambiguous Written Agreements In West Virginia, James Matthew Davis

West Virginia Law Review

No abstract provided.

Protecting Reliance, Victor P. Goldberg

Faculty Scholarship

Reliance plays a central role in contract law and scholarship. One party relies on the other's promised performance, its statements, or its anticipated entry into a formal agreement. Saying that reliance is important, however, says nothing about what we should do about it. The focus of this Essay is on the many ways that parties choose to protect reliance. The relationship between what parties do and what contract doctrine cares about is tenuous at best. Contract performance takes place over time, and the nature of the parties 'future obligations can be deferred to take into account changing circumstances. Reliance matters …

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. …

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, …

The Banking Contract As A Special Contract: The Israeli Approach, Ruth Plato-Shinar

Touro Law Review

No abstract provided.

Chinese Contract Formation: The Roles Of Confucianism, Communism, And International Influences, Amy Lee Rosen

University of Miami International and Comparative Law Review

China has opened its doors to the world so understanding Chinese contract law is crucial to succeeding in international business transactions. The United States and China are both signatories to the United Nations Convention on Contracts for the International Sale of Goods (CISG), and both nations have declared that neither are bound under Article 1(1)(b), which means that if a contractual conflict arises, the domestic law of either nation may apply when interpreting the contract. China only requires offer and acceptance whereas the United States requires mutual assent and consideration, so contract interpretation may be problematic. Beyond offer and acceptance, …

What Happens To Our Facebook Accounts When We Die?: Probate Versus Policy And The Fate Of Social-Media Assets Postmortem, Kristina Sherry

Pepperdine Law Review

More than 580,000 Facebook users in the U.S. will die this year, raising numerous legal questions as to the disposition of their Facebook pages and similar “digital assets” left in a state of legal limbo. While access to and ownership of decedents’ email accounts has been philosophized for nearly a decade, this Comment focuses on the additional legal uncertainties posed by “digital death” in the more amorphous realm of “social media.” Part II explores the implications of digital death by conceptualizing digital assets and surveying the underlying legal principles of contractual policies, probate, property, and privacy concerns. Part III surveys …

From Lord Coke To Internet Privacy: The Past, Present, And Future Of Electronic Contracting, Juliet M. Moringiello, William L. Reynolds

Faculty Scholarship

Contract law is applied countless times every day, in every manner of transaction large or small. Rarely are those transactions reflected in an agreement produced by a lawyer; quite the contrary, almost all contracts are concluded by persons with no legal training and often by persons who do not have a great deal of education. In recent years, moreover, technological advances have provided novel methods of creating contracts. Those facts present practitioners of contract law with an interesting conundrum: The law must be sensible and stable if parties are to have confidence in the security of their arrangements; but contract …

Mandating Precontractual Disclosure, Eric H. Franklin

Scholarly Works

Parties negotiating an arm's-length contract are generally not required to disclose facts to one another. Although this default rule is supported by both centuries of common law and freedom of contract principles, courts and legislatures treat certain transactions differently. This is particularly true in circumstances in which the default rule results in an unacceptable harm suffered by a broad group of persons. In such cases, lawmakers have acted to impose precontractual disclosure obligations. These decisions and statutes are largely reactive: A harm is identified in a certain transaction's precontractual period and disclosure is mandated to rectify the harm. These reactive …

Contract Stories: Importance Of The Contextual Approach To Law, Larry A. Dimatteo

UF Law Faculty Publications

How law is taught is at the center of the debate over the need to change legal education to better prepare students for a difficult and changing marketplace for legal services. This Article analyzes the benefits of using “stories” to teach law. The stories to be discussed relate to contract law: this Article asks whether they can be used to improve the method and content of teaching law. The ruminations offered on teaching contract law, however, are also relevant to teaching other core, first-year law courses.

Learning Contracts Through Current Events: Lawrence Cunningham’S Contracts In The Real World: Stories Of Popular Contracts And Why They Matter, Miriam A. Cherry

Faculty Publications

(Excerpt)

In his recent book published by Cambridge University Press, Professor Lawrence Cunningham explores the nuances of contract law through current events. His decision to use the contracts of modern-day singers, actors, and entertainers to illustrate contract law principles is an inspired choice that will appeal to today’s law students. The book guides the reader down the well-trodden path of classic contract doctrines and applies those classics in modern, celebrity-laden contexts. In this regard, the book reads like an updated version of Marvin Chirelstein’s classic contracts primer— an easy-to-read and clearly written commentary. Cunningham’s version adds rollicking celebrity stories to …

Lexis Nexus Complexus: Comparative Contract Law And International Accounting Collide In The Iasb-Fasb Revenue Recognition Exposure Draft, Kurt S. Schulzke, Gerlinde Berger-Walliser, Pier L. Marchini

Vanderbilt Journal of Transnational Law

U.S. and international accounting-standard setters plan to launch a new, global revenue accounting standard, Revenue from Contracts with Customers, in 2013. Poised at the nexus of comparative contract law and international accounting, the proposal's contract-based revenue recognition model creates new legal risks and opportunities for accountants, lawyers, clients, and financial statement users. Despite its focus on legally enforceable contracts, the proposed standard was drafted without input from the legal community. This Article models the proposal's complex contract-analysis process, demonstrating that its revenue outcomes may vary materially because of seemingly minor interjurisdictional differences in law applicable to "open-price" contracts; offers practice …

Click To Agree, James Gibson

Law Faculty Publications

The author reports on an analysis that he’s done of the cost to the consumer of actually reading and comprehending the boilerplate contracts that accompanied four computers that he bought, compared to potential consumer benefit.

Bad Faith At Middle Age: Comments On “The Principle Without A Name (Yet),” Insurance Law, Contract Law, Specialness, Distinctiveness, And Difference, Robert H. Jerry Ii

UF Law Faculty Publications

In this article, Robert Jerry expounds on Professor Abraham's article on insurer liability for bad faith by pointing out that the concept of institutional bad faith is not a new phenomenon, but rather, one that is as old as the insurance industry itself. Jerry focuses on Abraham's depiction of the "specialness" and "distinctiveness" of insurance, while exploring additional instances of "rotten to the core" systemic bad faith dating as far back as the nineteenth century. Much like Abraham did in his article on bad faith, Jerry uses these examples of systemic bad faith to further his assertion that the insurance …

Beyond Family Law, Sarah Abramowicz

Law Faculty Research Publications

Family law has traditionally been treated as an exceptional field, a marginalized and special case in which the usual rules of the legal canon do not apply. This Article argues that the current challenge to family-law exceptionalism has been largely one way, to the detriment of a central concern of family law: the protection of children and of the parent-child relationship. Family-law scholars have focused primarily on whether and how to import the tools and insights of other areas of law into the zone of family relations, while largely overlooking the possibility that the tools and insights of family law …

Liberty Over Death: Seeking Due Process Dimensions For Freedom Of Contract, Michael Pillow

Florida A & M University Law Review

No abstract provided.

Corporate Control And Credible Commitment, Ronald J. Gilson, Alan Schwartz

Faculty Scholarship

The separation of control and ownership – the ability of a small group effectively to control a company though holding a minority of its cash flow rights – is common throughout the world, but also is commonly decried. The control group, it is thought, will use its position to consume excessive amounts of project returns, and this injures minority shareholders in two ways: there is less money and the controllers are not maximizing firm value. To the contrary, we argue here that there is an optimal share of the firm that compensates the control group for monitoring managers and otherwise …

The Influence Of Law And Economics Scholarship On Contract Law: Impressions Twenty-Five Years Later, Jeffrey L. Harrison

UF Law Faculty Publications

This is an update of a work done in conjunction with a contract law conference 25 years ago. My specific assignment was to assess the impact of law and economics scholarship on contract law. I responded by conducting an empirical study of judicial citations to selected law and economics works in order to ascertain the extent to which judges seemed to be relying on the teachings of law and economics. In effect, the effort was part of a general question that concerns all law professors: Does scholarship matter? I have repeated the study with respect to the scholarship sample selected …

Civil Procedure And Contract Law—Contractual Forum-Selection Clauses In Erie Cases: More Than Substance Or Procedure, James C. Mcneal

University of Arkansas at Little Rock Law Review

The enforceability of forum-selection clauses is one of the most litigated jurisdictional issues in federal district courts. In a globalized society, forum-selection clauses reduce uncertainty. However, they present unique problems and, although they are liberally enforced by state and federal courts, forum-selection clauses are not always enforced by the forum court. Enforcement of forum-selection clauses is especially complex in diversity actions in federal court.

Forum-selection clauses appear substantive and often have substantive effects; however, they operate procedurally. Federal courts unanimously hold that the validity of a forum-selection clause is a procedural question and therefore the question of validity is decided …