Contracts Commons^™

Rediscovering Williston, Mark L. Movsesian

Faculty Publications

This Article is an intellectual history of classical contracts scholar Samuel Williston. Professor Movsesian argues that the conventional account of Williston's jurisprudence presents an incomplete and distorted picture. While much of Williston's work can strike a contemporary reader as arid and conceptual, there are strong elements of pragmatism as well. Williston insists that doctrine be justified in terms of real-world consequences, maintains that rules can have only presumptive force, and offers institutional explanations for judicial restraint. As a result, his scholarship shares more in common with today's new formalism than commonly supposed. Even the under-theorized quality of Williston's scholarship—to contemporary …

The Fiction Of Freedom Of Contract - Nursing Home Admission Contract Arbitration Agreements: A Primer On Preserving The Right Of Access To Court Under Florida Law, Robert Hornstein

St. Thomas Law Review

The primary purpose of this article is to provide a litigation paradigm on how the use of compelled nursing home arbitration agreements in Florida can be successfully challenged and a patient's right of access to the courts preserved. This article includes an examination of the use of compelled arbitration agreements under Florida law and their treatment by the courts. It also includes an analysis of how Florida's courts have generally responded to the widespread use of arbitration provisions. Further, it contains a review of the defenses available under Florida law that can be used to defend against compelled arbitration provisions. …

The Collapsing "No Damages For Delay" Clause In Florida Public Construction Contracts: A Call For Legislative Change, Alain Lecusay

St. Thomas Law Review

The purpose of this comment is to provide a reasonable and persuasive argument in support of the proposition that Florida should abolish the draconian "No Damages for Delay" clause, as against public policy, in public construction contracts. In particular, this comment attempts to show a pervasive national trend favoring the clause's non-enforceability through myriad judicial exceptions and statutory restrictions. Part I is a primer on the public construction process. It introduces the reader to each of the facets that make up the construction process: design, bidding, award, and construction. Part II argues in favor of invalidating the NDFD clause through …

Two Cheers For Freedom Of Contract, Mark L. Movsesian

Faculty Publications

Once, they say, freedom of contract reigned in American law. Parties could make agreements on a wide variety of subjects and choose the terms they wished. Courts would refrain from questioning the substance of bargains and would ensure only that parties had observed the proper formalities. In interpretation, objectivity was paramount. Courts would seek to ascertain, not what the parties had intended, but what a reasonable observer would understand the parties' words to mean. Contract law was a series of abstractions informed by individual autonomy and judicial deference.

This world, a classical paradise of doctrines with sharp corners, began to …

Tortious Interference And The Law Of Contract: The Case For Specific Performance Revisited, Deepa Varadarajan

Faculty Publications

What is the role of contract law in remedying breach? The question of the appropriate legal remedy, specific performance versus money damages, has provided adequate fodder for three decades of debate in the law and economics discourse. In the legal discipline at large, the topic has spurred centuries of debate, as illustrated by Oliver Wendell Holmes's famous line: “The only universal consequence of a legally binding promise is, that the law makes the promisor pay damages if the promised event does not come to pass.” Holmes's approach to contractual remedy would evolve during the latter half of the twentieth century …

Teaching Contracts From A Socioeconomic Perspective, Jeffrey L. Harrison

UF Law Faculty Publications

This essay begins with a brief discussion of what socioeconomics is. In this section I also address whether one must be well versed in conventional economics in order to apply a socioeconomic perspective. I then discuss the basic themes that are present throughout my contracts class that stem from my interest in socioeconomics. Underlying these themes is the more fundamental goal of devising methodologies for assessing the quality of contracts. By quality, I mean something more and perhaps more subtle than whether the parties have conformed to all the formal requirements. Instead, I encourage students to examine whether all of …

Are Statutes Really "Legislative Bargains"? The Failure Of The Contract Analogy In Statutory Interpretation, Mark L. Movsesian

Faculty Publications

Recent scholarship draws an analogy between contract and statutory interpretation. In this Article, Professor Movsesian explores and rejects that analogy. There are key differences between contracts and statutes, he argues; the intentionalism of contemporary contract law is inappropriate in the context of statutory interpretation. After critically examining the literature on the topic and demonstrating the operative distinctions between contracts and statutes, Professor Movsesian provides a useful illustration in the form of the famous case of Church of the Holy Trinity v. United States. Professor Movsesian shows how a comparison of contract and statutory interpretation sheds light on a number of …

Gateway Widens Doorway To Imposing Unfair Binding Arbitration On Consumers, Jean R. Sternlight

Scholarly Works

Hill v. Gateway, is but the most extreme example of a series of court decisions that allow large companies to impose potentially unfair binding arbitration agreements on unwitting consumers. The outcome in Gateway, however, is questionable on federal statutory, common law, and constitutional grounds.

Severability In Statutes And Contracts, Mark L. Movsesian

Faculty Publications

Established doctrine on the severability of unconstitutional statutory provisions has drawn criticism on almost every conceivable basis. Commentators have condemned severability doctrine as too malleable and as too rigid; as encouraging judicial overreaching and as encouraging judicial abdication. They have criticized the doctrine's reliance on legislative intent and its disregard of legislative intent; its excessive attention to political concerns and its inattention to political concerns; its lack of any coherent explanation.

The reasons for this lingering controversy are easy to discern. One is purely pragmatic. "We live in an age of statutes." Legislation provides our primary source of law in …

Class, Personality, Contract, And Unconscionability, Jeffrey L. Harrison

William & Mary Law Review

No abstract provided.

Forum Selection Clauses In Florida, Brian Mattis

St. Thomas Law Review

This Article briefly summarizes the evolution of forum selection clauses in the United States in general, and in Florida in particular. The writer contends that McRae was incorrectly decided on constitutional and statutory grounds, and proposes steps which may be taken to overrule the McRae decision. Lastly, the Article addresses some forum selection problems raised by the United States Supreme Court's recent decision in Carnival Cruise.

Consideration And Estoppel: Problem And Panacea, Bruce Macdougall

Dalhousie Law Journal

In his book, The History of the Common Law of Contract, A.W.B. Simpson demonstrates that consideration originally seems to have meant the "matter of inducement" - the "why" of entering a promise.' He writes: "The essence of the doctrine of consideration, then, is the adoption by the common law of the idea that the legal effect of a promise should depend upon the factor or factors which motivated the promise. To decide whether a promise to do X is binding, you need to know why the promise was made."2 In modem terms, according to Simpson, a promise which lacks any …

Taxation Of Notional Principal Contracts: Implications For U. S. Persons, Myra J. Schlosberg

St. Thomas Law Review

This article will critically analyze current U.S. tax treatment of NPCs used in the ordinary course of business as asset and liability management tools. Examples are used to illustrate the principles stated within the article. The focus will be to suggest a rational and coherent tax treatment based on two tenets. First, a policy which treats similar financial instruments in a consistent manner should be adopted to avoid anomalous or tax favored results. This would address the intuitive sense amongst legislative and administrative tax authorities, as well as tax practitioners, that an efficient and equitable tax system should tax economically …

Recovery For Pure Economic Loss In Tort: Another Look At Robins Dry Dock V. Flint, Victor P. Goldberg

Faculty Scholarship

In Robins Dry Dock and Repair Co. v. Flint, the Supreme Court laid down the general proposition that claims for pure economic loss are not recoverable in tort. Although courts have sometimes ignored or distinguished Robins, its holding is still a central feature of tort law. In a recent en bane decision regarding claims by those injured by a chemical spill in the Mississippi River, the Fifth Circuit engaged in an extensive debate over the continued vitality of Robins and concluded (despite five dissenters) that it remained good law.

The Robins rule is overbroad, lumping together a number of …

Law And Equity In Contract Enforcement, Emily L. Sherwin

Maryland Law Review

No abstract provided.

Saudi-Arabian Contract Law: A Comparative Perspective, Carol Lee Childress

St. Thomas Law Review

This paper will focus on a core component of Saudi Arabian business law - the law of contracts - and will look at its development from a U.S. lawyer's perspective. A brief history of Islam and the basic tenets of Islamic law along with a brief description of the Saudi Arabian governmental structure will provide the necessary background information. This paper will go on to highlight the roots of Saudi Arabian contract law in the teachings of Islam, including the conflicts over the interpretation of the Shari'a, and point out aspects of Islamic law that are quite foreign to the …

A Critique Of The Promise Model Of Contract, Wallace K. Lightsey

William & Mary Law Review

No abstract provided.

The Efficacy Of Guaranty Contracts In Sophisticated Commercial Transactions, Peter A. Alces

Faculty Publications

Even though contracts of guaranty are not subject to uniform standards of interpretation throughout the states, both case law and statutory development have tended to evidence a strong sympathy for the guarantor. In spite of this trend, Professor Alces suggests that creditors' counsel can, through careful drafting, do much to assure the enforceability of the guaranty contract. A scrupulously structured guaranty contract, one that anticipates possible defenses to liability in explicit terms, may well be upheld, even in cases in which guarantors occupied weak negotiating positions vis-a-vis creditors. Moreover, the attack on the guaranty as a fraudulent conveyance under section …