Contracts Commons^™

What If Fiduciary Obligations Are Like Contractual Ones?, Gregory Klass

Georgetown Law Faculty Publications and Other Works

This essay, to appear in Contract, Status, and Fiduciary Law (Miller & Gold, 2016), explores three ways fiduciary obligations might be like contractual ones: in the methods lawmakers use or should use to determine the content of the obligation; in the private voluntary acts that generate the obligation; and in the fact that the obligation is a default that parties have the power to alter. The thesis is that to the extent that these similarities exist, they are not especially revealing. Theorists who emphasize the similarities commonly treat contract law as a private power-conferring rule, then analogize the law of …

The Pricing Of Non-Price Terms In Sovereign Bonds: The Case Of The Greek Guarantees, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

In March 2012, Greece conducted one of the biggest and most brutal sovereign debt restructurings ever, asking holders of Greek government bonds to take net present value haircuts of near 80 percent. Greece forced acquiescence to its terms from a large number of its bonds by using a variety of legal strong-arm tactics. With the vast majority of Greek bonds, the tactics worked. There were, however, thirty-six bonds guaranteed by the Greek state, which, because of the weakness of the underlying companies, were effectively obligations of the Greek state. Yet, on these thirty six bonds, even though Greece desperately needed …

Culpable Participation In Fiduciary Breach, Deborah A. Demott

Faculty Scholarship

This essay makes a case for the salience of tort law to fiduciary law, focusing on actors who culpably participate in a fiduciary's breach of duty, whether by inducing the breach or lending substantial assistance to it. Although the elements of this accessory tort are relatively settled in the United States, how the tort applies to particular categories of actors-most recently investment bankers who serve as M&A advisors-provokes controversy. The paper also explores the less developed terrain of primary actors who breach governance duties that are not fiduciary obligations because the entity's organizational documents eliminate fiduciary duties, as Delaware law …

25 Years, Where Are We Now? Global Trade & Sovereign Debt, Steven L. Schwarcz

Faculty Scholarship

No abstract provided.

Contract Development In A Matching Market: The Case Of Kidney Exchange, Kimberly D. Krawiec, Wenhao Liu, Marc L. Melcher

Faculty Scholarship

We analyze a new transplant innovation — Advanced Donation, referred to by some as a kidney “gift certificate,” “layaway plan,” or “voucher — as a case study offering insights on both market and contract development. Advanced Donation provides an unusual window into the evolution of the exchange of a single good — a kidney for transplantation — from gift, to simple barter, to exchange with a temporal separation of obligations that relies solely on trust and reputational constraints for enforcement, to a complex matching market in which the parties rely, at least in part, on formal contract to define and …

Defining Agency And Its Scope (Ii), Deborah A. Demott

Faculty Scholarship

Fiduciary law necessarily raises issues of delineation and demarcation, which this paper demonstrates through examples involving common-law agents. Serving as an agent, and thus as a fiduciary, does not necessarily mean that agency law prescribes all duties that the agent owes the principal. The agent may have rights external to the relationship that the agent may exercise, distinct from the duty of loyalty owed the principal. When an agent acts outside the bounds of an agency relationship, the principal’s consent is not requisite to conduct that would constitute disloyalty within the bounds of the agency relationship. The paper illustrates the …

A Story Of Three Bank-Regulatory Legal Systems: Contract, Financial Management Regulation, And Fiduciary Law, Tamar Frankel

Faculty Scholarship

How should banks be regulated to avoid their failure? Banks must control the risks they take with depositors' money. If depositors lose their trust in their banks, and demand their money, the banks will fail. This article describes three legal bank regulatory systems: Contract with depositors (U.S.); a mix of contract and trust law, but going towards trust (Japan), and a full trust-fiduciary law regulating banks (Israel). The article concludes that bank regulation, which limits the banks' risks and conflicts of interest, helps create trustworthy banks that serve their country best.

An App For Third Party Beneficiaries, David G. Epstein

Law Faculty Publications

Every year, more than 100 reported court opinions consider the question of whether an outsider can sue for damages under a contract made by others-in part because the law is so ambiguous. While contract enforcement by a third party is controlled largely by the facts of the particular case, it also materially depends upon the relevant legal standards. At present, not just the standards, but also the reasons for these standards, are unclear. Eighty years ago, Lon Fuller, a professor teaching contracts at a then-Southern law school, and William Perdue, a student at that school, significantly clarified and improved decision …

After The Golden Victory: Still Lost At Sea, Victor P. Goldberg

Faculty Scholarship

In The Golden Victory the House of Lords held that when determining damages for a repudiatory breach, in a conflict between the compensatory principle and finality, the former trumped. The decision was recently ratified by the Supreme Court in Bunge SA v. Nidera BV. The claim in this paper is that this was a mistake; properly conceived, there is no conflict. The contract should be viewed as an asset and compensation would entail determining the decline in value of that asset at the time of the breach. The value of the contract at that moment would reflect the possible effects …

International B2b Contracts - Freedom Unchained?, Ingeborg Schwenzer, Claudio Marti Whitebread

Penn State Journal of Law & International Affairs (2012 - Present)

No abstract provided.

A Proposal To Regulate The International Contract Of Logistics Services Door-To-Door Including A Sea Leg, Claudia Cristina Mesa

World Maritime University Dissertations

No abstract provided.

Homeland Self Storage Management, Llc, Et Al., Various Discovery Motions, John J. Goger

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

No abstract provided.

“Whimsy Little Contracts” With Unexpected Consequences: An Empirical Analysis Of Consumer Understanding Of Arbitration Agreements, Jeff Sovern, Elayne E. Greenberg, Paul F. Kirgis, Yuxiang Liu

Maryland Law Review

Arbitration clauses have become ubiquitous in consumer contracts. These arbitration clauses require consumers to waive the constitutional right to a civil jury, access to court, and, increasingly, the procedural remedy of class representation. Because those rights cannot be divested without consent, the validity of arbitration agreements rests on the premise of consent. Consumers who do not want to arbitrate or waive their class rights can simply decline to purchase the products or services covered by an arbitration agreement. But the premise of consent is undermined if consumers do not understand the effect on their procedural rights of clicking a box …

Mommy Dearest: Determining Parental Rights And Enforceability Of Surrogacy Agreements, William J. Giacomo, Angela Dibiasi

Pace Law Review

The governing law in this area is new and evolving and, as such, the allocation of the legal rights and responsibilities depend on which state has jurisdiction over the matter. This article will discuss the basic types of surrogacy agreements and examine the legal distinctions of their enforceability under New York and California law.

Case Law Developments Addressing The Consequences Of A Liability Insurer’S Breach Of Its Duty To Defend, Michael A. Haskel

Pace Law Review

In pursuit of a greater understanding of this controversial subject, this article will: (1) explore the contract principles and public policy considerations that are implicated by an insurer’s breach of its defense duty; (2) consider recent case law addressing relevant issues; and (3) recommend a comprehensive approach that accommodates competing interests. Ultimately, the author concludes that in most circumstances an insurer that wrongfully disclaims its duty to defend should be precluded from raising defenses as to coverage in an action to indemnify the insured for monies paid out by the insured.

Count The Limbs: Designing Robust Aggregation Clauses In Sovereign Bonds, Anna Gelpern, Ben Heller, Brad Setser

Georgetown Law Faculty Publications and Other Works

On August 29, 2014, the International Capital Market Association (ICMA) published new recommended terms for sovereign bond contracts governed by English law. One of the new terms would allow a super majority of creditors to approve a debtor’s restructuring proposal in one vote across multiple bond series. The vote could bind all bond holders, even if a series voted unanimously against restructuring, so long as enough holders in the other series voted for it. An apparently technical change, awkwardly named “single-limb aggregated collective action clauses (CACs)” promised to eliminate free-riders for the first time in the history of sovereign bond …

The Justice Element Of Promissory Estoppel, Orit Gan

St. John's Law Review

(Excerpt)

The contribution of this Article is threefold. First, it critiques the current case law for ignoring and neglecting the justice element of promissory estoppel. This goes against the specific wording of section 90 of the Restatement (Second) of Contracts and also against promissory estoppel’s rationale and purpose. Contrary to this approach, this Article suggests a robust justice element based on a theory of distributive justice.

Second, a more robust justice element will make the doctrine of promissory estoppel more meaningful. This will result in better protecting reliance, furthering trust and cooperation among parties, empowering disadvantaged parties, and making the …

Homeland Self Storage Management, Llc, Et Ai., Order On Emergency Motion For Order To Show Cause Why Causes Of Action Should Not Be Stricken, John J. Goger

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

No abstract provided.

Predictix, Llc, Order And Final Judgment On Business Valuation Proceeding Pursuant To O.C.G.A. § 14-11-1011, Elizabeth E. Long

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

No abstract provided.

Dealing With Installment Sales 35 Years After The Installment Sales Revision Act Of 1980, Robert D. Schachat

William & Mary Annual Tax Conference

No abstract provided.

Copyright As Contract, Jeffrey L. Harrison

Journal of Intellectual Property Law

Copyright is essentially a contract between the author and the public with the government acting as the agent of the public. The consideration received by authors is defined by duration and breadth of exclusivity. The consideration for the public is the creation of a "work" that will be available on a limited basis for the life of the author plus 70 years and then available without limit after that. If there were no transaction costs at all, it would be possible to "pay" authors different amounts of exclusivity. Perhaps a greeting card would get one holiday season of exclusivity, if …

Payment Systems, Consumer Tragedy, And Ineffective Remedies, Marc L. Roark

St. John's Law Review

(Excerpt)

This Article engages how those social considerations interact with commercial contracting principles and payments policies to recommend an over-arching narrative of fairness. At the core is the desire to create balance amongst the competing interests, while recognizing the role that risk and access should play in defining the legal remedies available to consumers. To do so, the Article attempts to understand the competing interests represented by different constituents of SVPs, including consumers and merchants. In particular, the Article attempts to tell a story of two different types of consumers. The first is one whom we might not care much …

Raser Technologies Order On Defendants' Motion To Temporarily Stay Proceedings Pending A Related U.S Supreme Court Decision, John J. Goger

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

No abstract provided.

Non-Party John W. Robinson Iii's Application For Protective Order, John J. Goger

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

No abstract provided.

You're In The Army Now! Reforming Military Enlistment Contracts, Jason Steck

Hamline Law Review

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Revival Or Revolution: U.S. Trust's Role In The Contracts Clause Circuit Split, Michael Cataldo

St. John's Law Review

(Excerpt)

This Note argues that U.S. Trust's Contracts Clause test created ambiguities that have spawned varying and conflicting approaches in the circuits. This Note also argues that U.S. Trust's failure to advance the Framers' original intent and departure from precedent has created the doctrinal disagreement that feeds the circuit split. Part I presents the history of the Contracts Clause from the Constitutional Convention up to the decision in U.S. Trust. Part II emphasizes the negative consequences of U.S. Trust's novel approach by detailing the varying approaches the circuits have taken in applying the ambiguous dual standards set out in …

Due Date: Enforcing Surrogacy Promises In The Best Interest Of The Child, Browne C. Lewis

St. John's Law Review

(Excerpt)

This Article is not meant to debate whether surrogacy contracts should be legal. The purpose of this Article is to address situations where the surrogate reneges on her promise and attempts to keep the child. In particular, this Article deals with the adjudication of maternity after the surrogate has breached the agreement by failing to turn the child over to the intended parent or parents. This Article is divided into four parts. Part I discusses the current ways courts resolve breaches of surrogacy contracts. Part II evaluates the appropriateness of legal remedies like damages and specific performance when a …

Predictix, Llc, Order On Motion To Compel, Elizabeth E. Long

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

No abstract provided.

Newsroom: Monestier On Long-Arm Jurisdiction, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Spinosa Order On Plaintiff's Motion To Compel Discovery, Alice D. Bonner

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

No abstract provided.