Contracts Commons^™

Sketches Of A Redemptive Theory Of Contract Law, Emily Houh

Faculty Articles and Other Publications

This Article is about the game we call contract law and what it does and means to those who, at one time or another, have been categorically barred from play. How have "outsider" players-such as racial minorities, women, and sexual minorities -entered the game and, subsequently, how have its governing rules-that is, contract doctrines applied or not applied to them? On the flipside, how have common law contract doctrines responded to the entry of new players in the game? And, to the extent contract law has so responded, why has it done so? In asking and responding to these questions, …

Efficient Contextualism, Peter M. Gerhart, Juliet P. Kostritsky

Faculty Publications

This Article recommends an economic methodology of contract interpretation that enables the court to maximize the benefits of exchange for the parties and thereby enhance the institution of contracting. We recommend a methodology that asks the parties to identify the determinants of a surplus maximizing interpretation so that the court can determine whether the determinants raise issues that need to be tried. We thus avoid the false choice between textualist and contextualist methodologies, while allowing the parties and the court to avoid costly litigation. For textualist courts, our methodology helps the judge determine when the terms the parties used are …

Context Matters - What Lawyers About Choice Of Law In Merger Agreements, Juliet P. Kostritsky

Faculty Publications

Finding out the truth about a matter can proceed in many different ways. Neoclassical law and economists would construct models built on certain assumptions. The empiricists and contextualists would collect data about the matter in the inductive not deductive sense.

The choice of law in merger agreements presents an opportunity to study a contractual provision in the context of merger deals to see what we can learn from studying the choices in detail.

There are a variety of ways to approach these provisions in merger agreements. Can we learn anything about how choices are made in the drafting of these …

Defects In Consent And Dividing The Benefit Of The Bargain: Recent Developments, Jeffrey L. Harrison

UF Law Faculty Publications

Contract law professors and students, attorneys, judges know that discussions about consent are rarely about consent. This results from three factors. First, it is the appearance of consent that is necessary to form a contract. Second, not every manifestation of consent is sufficient to create a contract that cannot be avoided. Third, interpretations of consent have the potential to allow courts to intervene when the benefit of the bargain is seen to be unfairly divided or one of the parties is actually worse off as a result of the contract. This Article assesses the extent to which recent decisions about …

Principles Of Contract Law Applied To Entertainment And Sports Contracts: A Model For Balancing The Rights Of The Industry With Protecting The Interests Of Minors, John H. Shannon, Richard J. Hunter Jr.

Loyola of Los Angeles Law Review

This Article discusses the context of common law and statutory materials dealing with minors who participate in the entertainment and sports fields. The Article describes the changes undertaken as a result of several notorious cases involving prominent child actors, and how the California legislature dealt with issues ranging from set asides of income, approval of contracts by a competent court of jurisdiction, recognition of the legitimate interests of all parties to the contract, to principles under which a minor would be precluded from disaffirming a contract. The Article then applies and extends the principles developed in entertainment contracts to minors …

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

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 …

Catalyzing Fans, Howard Wasserman, Dan Markel, Michael Mccann

Faculty Publications

This paper proposes the development of Fan Action Committees (“FACs”), which, like their political counterpart ("PACs"), could mobilize and empower fans to play a larger role in the decision-making associated with which “production teams” the talent will work.

We outline two institutional options: FACs could directly compensate talent by crowdfunding, or they could make donations to charities favored by talent. We then discuss both obstacles and objections from a variety of policy and legal perspectives ranging from competitive balance to distributive justice. Finally, we consider possible extensions of the FAC model as well as offer some ruminations on why FACs …

Say The Magic Word: A Rhetorical Analysis Of Contract Drafting Choices, Lori D. Johnson

Scholarly Works

Drafters of complex contracts often face a thorny dilemma – determining whether to retain “magic words” included in form documents, especially when considering the advice of current contract style scholars advocating for the removal of all traditional contract prose. But the drafter need not remove all terms that serve as elegant shorthand for more convoluted legal concepts, particularly where the inclusion of the term advances client interests. The application of rhetorical criticism – the analysis of methods of communicating ideas – to drafters’ use of the term “time is of the essence” sheds light on the dominant motivations of drafters …

The Relevance Of Law To Sovereign Debt, W. Mark C. Weidemaier, Mitu Gulati

Faculty Scholarship

The literature on sovereign debt treats law as of marginal significance, largely because the doctrine of sovereign immunity leaves creditors few potent legal remedies against sovereign borrowers. Although sovereign debts can indeed by hard to enforce, the goal of this Essay is to demonstrate that law plays a central, and constantly evolving, role in structuring sovereign debt markets. To list just a few examples, legal rules and institutions (i) decide when a borrower is sovereign, (ii) define the consequences of sovereignty by drawing (or refusing to draw) artificial boundaries between the sovereign and other legal entities, (iii) play some role …

Meeting Summary Of Colloquium On Policy, Law, Contracts, And Sustainable Development, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

In November 2014, CCSI and the Institute for Human Rights and Business co-convened a colloquium on policy, law, contracts, and sustainable development, with a particular focus on large-scale investments in the extractive industries and the agriculture sector. The colloquium provided an opportunity for practitioners to share information on their related work, as well as to reflect on current practices and remaining gaps regarding efforts to embed sustainability and human rights into large-scale deals. This outcome document provides a summary of the discussion, while its annex includes information on participants’ relevant programs, initiatives, and tools.

Inherit The Cloud: The Role Of Private Contracts In Distributing Or Deleting Digital Assets At Death, Natalie M. Banta

Fordham Law Review

    We live in a world permeated with technology. Through our online accounts we write emails, we store pictures, videos, and documents, we pay bills and conduct financial transactions, we buy digital books and music, and we manage loyalty programs. Digital assets have quickly replaced physical letters, pictures, books, compact discs, and documents stored in filing cabinets and shoeboxes. The emergence of digital assets raises pressing questions regarding the treatment of digital assets at an account holder’s death. Unlike digital assets’ physical counterparts, an account holder does not control the ultimate fate of digital assets. Instead, digital assets are controlled by …

Fiduciary Discretion, D. Gordon Smith, Jordan C. Lee

Faculty Scholarship

Discretion is an important feature of all contractual relationships. In this Article, we rely on incomplete contract theory to motivate our study of discretion, with particular attention to fiduciary relationships. We make two contributions to the substantial literature on fiduciary law. First, we describe the role of fiduciary law as “boundary enforcement,” and we urge courts to honor the appropriate exercise of discretion by fiduciaries, even when the beneficiary or the judge might perceive a preferable action after the fact. Second, we answer the question, how should a court define the boundaries of fiduciary discretion? We observe that courts often …

The Perils Of Primacy: Successor Liability For Lenders Turned Declarants In Louisiana Common Interest Communities, Christopher K. Odinet

Faculty Scholarship

In surveying the landscape of contemporary American real estate, it is increasingly difficult — if not impossible — to find a development that is not part of a common-interest community. Whether one is strolling through the avenues of a mixed-use commercial development or driving down the manicured tree-lined streets in a residential neighborhood, a complex and detailed legal regime underpins these developments in order to ensure that the order, quality, and aesthetic of the project is ensured and maintained from its earliest days and long into its future.

Since its inception in the early 1900s, the complexity of common interest …

Ex Tempore Contracting, Andrew Verstein

William & Mary Law Review

This Article argues that a cornerstone assumption of contemporary contracts scholarship is misleading and limited. Leading academic commentary explicitly assumes that contractual responsibilities are determined in the following way: parties determine many of their duties ex ante, by specifying terms at the time of contract formation, and leave the rest of the terms vague, for a court to specify ex post if any should prove important. This ex ante / ex post dichotomy is the guiding framework in attempts to understand contract design and interpretation. For example, parties use terms like “merchantable” quality when the cost of being more specific …

Mistake In Assumptions, Stephen Waddams

Osgoode Hall Law Journal

Mistake raises several important and difficult questions for contract law. The question addressed here is, when is it an excuse from contractual obligation that a contract has been made under the influence of a mistake of fact? Posed in this form, the question invites attention to aspects of contract law not usually considered in relation to each other, particularly misrepresentation, frustration, and more generally, unjust enrichment, all areas in which Professor McCamus has written extensively. This article brings these areas together with the object of throwing useful light on each of them, both from the point of view of understanding …

Disclaimers Of Contractual Liability And Voluntary Obligations, Michael G. Pratt

Osgoode Hall Law Journal

Contractual obligations are traditionally regarded as voluntary. A voluntary obligation is one that can be acquired only if one intends to acquire it. This traditional understanding finds doctrinal expression in the requirement that contracting parties intend to create legal relations. It has, however, been doubted that the Anglo-Canadian law of contract insists on this requirement. Skeptics argue that cases ostensibly decided on the basis of such a requirement are better explained otherwise. In this paper I invoke the legal force of contractual disclaimers to show that contractual obligations are indeed voluntary. When parties to an agreement purport to exclude it …

Consideration Which Happens To Fail, Andrew Kull

Osgoode Hall Law Journal

Recent English commentary employs the timeworn expression “failure of consideration” in an unprecedented way. It can now designate an expansive residual category of grounds for restitution: at its fullest, “the failure to sustain itself of the state of affairs contemplated as a basis” for a transaction by which one party is enriched at the expense of another. Because the result is plainly to incorporate a civilian-style “absence of basis” test within commonlaw unjust enrichment, the new “failure of consideration” carries an incidental implication for Canadian restitution law: if Garland v Consumers’ Gas really announced a shift from commonlaw “unjust factors” …

In Defense Of Surrogacy Agreements: A Modern Contract Law Perceptive, Yehezkel Margalit

William & Mary Journal of Race, Gender, and Social Justice

The American public’s attention was first exposed to the practice of surrogacy in 1988 with the drama and verdict of the Baby M case. Over the last twenty-five years, the practice of surrogacy has slowly become increasingly socially accepted, and even welcomed. This evolution serves to emphasize the bizarre judicial and legislative silence regarding surrogacy that exists today in the vast majority of U.S. jurisdictions. In this Article, I describe and trace the dramatic revolution that took place during the recent decades, as the surrogacy practice has drastically changed from one viewed as problematic and rejected to a socially widespread …

Situational Duress And The Aberrance Of Electronic Contracts, Nancy S. Kim

Chicago-Kent Law Review

This article explains how the aberrant nature of electronic contracts has unique implications, which contract law should recognize. Companies, taking advantage of these unique implications, may use electronic contracts in an unfair and coercive manner, which is why this article proposes expanding the definition of duress to include “situational duress.” Situational duress would not encompass all electronic contracting scenarios, but would be limited to situations where (1) a drafting company uses an electronic contract to block consumer access to a product or service; (2) the consumer has a “vested interest” in that product or service; and (3) the consumer accepts …

The Judicial Vision Of Contract - The Constructed Circle Of Assent And Printed Terms, John E. Murray Jr.

St. Thomas Law Review

The perennial dilemma of modern contract law is the effect to be accorded standardized terms, the printed "boilerplate" terms that appear in the overwhelming majority of contracts and are typically ignored. The dilemma has been exacerbated by recent decisions addressing the operative effect of standardized terms that appear after the contract has been formed. The confusion emanating from such "terms-later" cases has made even the chronology of contract-making uncertain.

Comparative And Normative Analysis Of Damages Under The Sga And The Cesl, Reza Beheshti

St. Thomas Law Review

This article strives to analyze the rules concerning monetary damages under two different legal regimes for the sale of goods: the Sale of Goods Act of 1979 ("SGA") and the Proposal for a Common European Sales Law in 2011 ("CESL"). It is not the purpose of this article to provide an exhaustive exposition of the doctrines of either regime. Instead, the focus will be on the central aspects of monetary damages, such as the aim of damages and general rules governing the measure of damages. It should be noted that inevitably there will be some references to the commentaries on …

Ghosts Have Rights Too! A New Era In Contractual Rights: Third-Party Invocation In Forum Selection Clauses, Monika L. Woodard

St. Thomas Law Review

In the wake of non-party adhesion becoming an increasingly large problem for the federal and state courts, this comment proposes a modification to the test set forth by Judge Posner in Raintree. This comment also makes a call to the Supreme Court for action in determining a ceiling standard for non-party invocation of forum selection clauses. Part II of this comment considers the direction of the Supreme Court in past decisions on forum selection clauses in general and the implications of these decisions on the future of the clauses. Part III discusses the relatively new question surrounding forum selection clauses …

Legal Uncertainty And Aberrant Contracts: The Choice Of Law Clause, William J. Woodward Jr.

Chicago-Kent Law Review

Legal uncertainty about the applicability of local consumer protection can destroy a consumer’s claim or defense within the consumer arbitration environment. What is worse, because the consumer arbitration system cannot accommodate either legal complexity or legal uncertainty, the tendency will be to resolve cases in the way the consumer’s form contract dictates, that is, in favor of the drafter. To demonstrate this effect and advocate statutory change, this article focuses on fee-shifting statutes in California and several other states. These statutes convert very common one-way fee-shifting terms (consumer pays business’s attorneys fees if business wins but not the other way …

A Nihilistic View Of The Efficient Breach, Jeffrey L. Harrison

UF Law Faculty Publications

This article began as a reaction to an article by Daniel Makovits and Alan Schwartz in the Virginia Law Review, “The Myth of the Efficient Breach. . . .” In their article they offer what they call “new defenses” of the expectation interest as a contract remedy. Much of their analysis has been anticipated by others. Plus, in my view the law and economics concepts they seem to rely on lost their legitimacy years ago. Their article was the catalyst for this broader examination of forty years of writing about the efficient breach and an assessment of where it has …

Contracts: An Introduction To A Symposium And A Few Additional Thoughts, Jennifer S. Martin

St. Thomas Law Review

On February 21, 2014, the St. Thomas University School of Law opened a symposium entitled simply "Contracts" in conjunction with the Ninth Annual International Conference on Contracts hosted by the School of Law. The decision of the St. Thomas Law Review to sponsor and conduct a symposium on the simple broad reaching topic of contract law with this esteemed group was a natural decision and exciting opportunity. Contract law has long been a foundation study for students and scholars with a rich history and significance to individuals and businesses alike. Significantly, as reflected by Dr. Roni Rosenberg in his essay …

Donee Beneficiaries And The Parol Evidence Rule, Joseph M. Perillo

St. Thomas Law Review

Donee beneficiaries are pretty peculiar. They own the rights created by a contract created by others. Their rights have primacy over the promisee's rights' but the promisees have enforceable rights as well. The donee beneficiaries may be totally unaware of these enforceable rights for which they have not given consideration. For purposes of this essay, "donee beneficiary" means any intended beneficiary other than a creditor beneficiary. A creditor beneficiary is a promisor who assumes a debt that "will satisfy an obligation of the promisee to pay money to the beneficiary . ... " Thus defined, third party donee beneficiaries are …

Emergence On Contract Standards And Its Future Impact On Legal Education, Kingsley Martin

St. Thomas Law Review

Let me start with a story. It was almost thirty years ago that I graduated from Harvard Law School and joined my first law firm. I distinctly remember my first assignment, which was to draft a credit agreement. Despite my education, I had no clue how to perform the assignment. I had to do it the same way as everyone else, which was to go around the corridors, bang on some doors, get some examples, sit down and start to read them. I have no doubt that my first few attempts and, in all likelihood, years' worth of drafts, were …

The Contract: Between Contract Law And Criminal Jurisprudence, Roni Rosenberg

St. Thomas Law Review

The structure of the essay is as follows: Part I presents the general legal premise that enables the conviction of one who has caused harm by an omission in cases where the duty to act originates in a contractual obligation and highlights U.S. case law on this topic. Part II distinguishes between the duty to act that originates in a contract and a similar duty that is mentioned in case law and literature: the actual assumption of responsibility for a potential victim. Part III introduces various scenarios to assist in examining which contracts can serve as a source of a …

Designing And Constructing Commercial Agreements In The 21st Century, Jeffrey Ritter

St. Thomas Law Review

In the 21s century, commercial agreements crafted by attorneys structure relationships in which the administration and execution of those relationships is largely, if not exclusively, governed through the use of digital technologies. These technologies communicate information, record and report activities taken by the parties in furtherance of their relationship, make payments of monies and other compensation, and provide the evidence with which disputes among the parties will be resolved. All of these functions are designed and executed through technology systems that monitor and record activities that are the basis for determining compliance with the requirements of those agreements at a …

Contesting Disclaimer-Of-Reliance Clauses By Efficiency, Free Will, And Conscience: Staving Off Caveat Emptor, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

This Article hopes to make evident two trends seemingly in conflict. The first trend is toward raising the standards of probity and veridicality in contractual relations toward greater accountability and liability on market actors operating outside traditional bounds. The first is expressed by new rules that: require good faith and fair dealing between parties; ensure sellers are obligated to disclose material facts about a property otherwise unavailable to buyers; and make wrongdoing parties liable to non-parties who foreseeably relied on the wrongdoers' contractual undertakings. This trend promises to avert injury, achieve efficiency, and seems to accord with society's evolving notions …