Contracts Commons^™

Narrative And The Origins Of Law, Allison Anna Tait, Luke P. Norris

Law Faculty Publications

In order to understand these distinct narratives of legal origin through the tools of narratology, we will proceed in several steps. First, we will define more precisely the set of social contract theories that we consider. We will discuss our decision to narrow the focus down to two social contract theorists in particular, one contemporary and one classical, John Rawls and Jean-Jacques Rousseau. These two theorists seem worlds apart in many respects—yet the tools of narratology will enable us to see their shared enterprise. Second, the tools of narratology will help us to identify and discuss the component parts that …

Consumer Contract Exchanges And The Problem Of Adhesion, Andrew A. Schwartz

Publications

Businesses and sophisticated parties have long used "contract exchanges," like the Chicago Board of Trade, to obtain a fair price and protect themselves from market volatility. These contract exchanges have greatly benefited both their participants and the public at large, but participation was long limited to a wealthy few. A decade ago, however, Internet websites, including Hotwire and Priceline, brought the power of contract exchanges directly to consumers, allowing regular people to flex their collective bargaining power to obtain low prices on travel services. Even more recently, other such "consumer contract exchanges," including Prosper and MoneyAisle, have organized vibrant markets …

The Three And A Half Minute Transaction: Boilerplate And The Limits Of Contract Design, Mitu Gulati, Robert E. Scott

Faculty Scholarship

Last fall we gave a faculty workshop at the Hofstra University School of Law on an early version of our book manuscript, The Three and a Half Minute Transaction. The resulting debate was lively and the discussion ranged over a wide variety of topics. The end result, much to our delight, was that the editors of the Hofstra Law Review suggested a symposium where they would invite a group of eminent scholars and practitioners to react to the manuscript. The hope was that those reactions would generate a further debate akin to the one we had at the workshop. …

Sifre V. Sifre, Victoria Rosner

NYLS Law Review

No abstract provided.

In Re Healthsouth Corp. Securities Litigation, Adam Paul Gordon

NYLS Law Review

No abstract provided.

Freedom Of Contract Vs. Free Alienability: An Old Struggle Emerges In A New Context, Neil B. Cohen, William Henning

Faculty Scholarship

No abstract provided.

Selling Sex: Analyzing The Improper Use Defense To Contract Enforcement Through The Lens Of Carroll V. Beardon, Julie M. Spanbauer

Cleveland State Law Review

The Supreme Court of Montana's, three-page opinion in Carroll v. Beardon is a treasure for those who teach first-year law students. Its deceptive simplicity is a lesson in close reading. It provides scholars and teachers endless opportunities to explore the cultural context within which courts operate and construct case narratives. Its humorous tone additionally belies a serious failure by the court to provide a fair and impartial resolution of the parties' dispute and to create useful precedent for future courts and litigants. The decision and its implications remain relevant and merit consideration by scholars exploring the intersection of contract and …

The Windfall Myth, A. Christine Hurt

Faculty Scholarship

No abstract provided.

Regulating Compensation, A. Christine Hurt

Faculty Scholarship

No abstract provided.

Summary Of Gonski V. Dist. Ct., 126 Nev. Adv. Op. No. 51, Ryan Johnson

Nevada Supreme Court Summaries

The Second Judicial District Court entered an order compelling arbitration in a construction defect dispute. Petitioners asked for a writ of mandamus vacating the order compelling arbitration.

Alteration Of The Contractual Equilibrium Under The Unidroit Principles, Amin Dawwas

Pace International Law Review Online Companion

This paper addresses the principles of hardship and specific performance as being unreasonably burdensome or expensive both in terms of their definitions and legal consequences. This paper argues that, in a situation of hardship, the debtor can choose to invoke either the rules of section 6.2 (hardship) or the defense to specific performance under Article 7.2.2-b of the UNIDROIT Principles of International Commercial Contracts (“UNIDROIT Principles”). Yet, while in a situation where performance of the contract becomes “unreasonably burdensome or expensive,” the debtor might only invoke the exception to specific performance under Article 7.2.2(b) of the UNIDROIT Principles.

A Contractual Approach To Shareholder Oppression Law, Benjamin Means

Faculty Publications

According to standard law and economics, minority shareholders in closely held corporations must bargain against opportunism by controlling shareholders before investing. Put simply, you made your bed, now you must lie in it. Yet most courts offer a remedy for shareholder oppression, often premised on the notion that controlling shareholders owe fiduciary duties to the minority or must honor the minority's reasonable expectations. Thus, law and economics, the dominant mode of corporate law scholarship, appears irreconcilably opposed to minority shareholder protection, a defining feature of the existing law of close corporations.

This Article contends that a more nuanced theory of …

Pluralism In Contract Law, Leon Trakman

Buffalo Law Review

No abstract provided.

Resolving The Dilemma Of Nonjusticiable Causation In Failure-To-Warn Litigation, Neil B. Cohen, Aaron Twerski

Faculty Scholarship

No abstract provided.

Standardization Of Standard-Form Contracts: Competition And Contract Implications, Mark R. Patterson

William & Mary Law Review

Standard-form contracts are a common feature of commercial relationships because they offer the advantage of lower transaction costs. This advantage of standard contracts is increased when there is a second layer of standardization under which multiple firms agree on a standard contract. Trade associations and similar entities often effect standardization of this kind through collective agreement on a standard contract, sometimes under the aegis of state actors. Multifirm contract standardization can provide not only the usual transaction-cost advantages of standard-form contracts, but also increased competition among firms, because a standard contract makes comparison among firms’ offerings easier. But standardization among …

Salvage Awards On The Somali Coast: Who Pays For Public And Private Rescue Efforts In Piracy Crises?, Geoffrey Christopher Rapp

American University Law Review

This paper, a contribution to the "Troubled Waters: Combating Modern Piracy with the Rule of Law" symposium, explores the question of who pays for rescue efforts associated with maritime piracy. The paper explores the availability of admiralty law's salvage awards to governmental and non-governmental actors who intervene to rescue vessels and crew from pirates. Such awards provide an unusual incentive to rescue, traditionally unavailable for land-based rescue, but may raise complicated questions of policy and international law. The paper concludes by comparing salvage awards to a recent trend in American states to adopt "Search and Rescue" expense statutes allowing governments …

Fighting Piracy With Private Security Measures: When Contract Law Should Tell Parties To Walk The Plank, Jennifer S. Martin

American University Law Review

This Article addresses the following question: when should contract law permit parties to discontinue performance under a private security contract aimed to combat piracy? Piracy has been 'on the rise' off Somalia and in East Asia, with serious attacks escalating. Some shipping companies have responded by drafting 'best management practices', hiring security companies to advise on countering the threat and hiring armed or unarmed security protection. After presenting representative factual situations involving pirate attacks, the Article describes the traditional approach to defining the obligations of parties and the performance issues that arise during contractual performance. This approach takes into account …

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 …

Known And Unknown, Property And Contract: Comments On Hoofnagle And Moringiello, James Grimmelmann

Cornell Law Faculty Publications

In addition to gerund-noun-noun titles and a concern with the misaligned incentives of businesses that handle consumers' financial data, Chris Hoofnagle's Internalizing Identity Theft and Juliet Moringiello's Warranting Data Security share something else: hidden themes. Hoofnagle's paper is officially about an empirical study of identity theft, but behind the scenes it's also an exploration of where we draw the line between public information shared freely and secret information used to authenticate individuals. Moringiello's paper is officially a proposal for a new warranty of secure handling of payment information, but under the surface, it invites us to think about the relationship …

The United States Guestworker Program: The Need For Reform, Elizabeth Johnston

Vanderbilt Journal of Transnational Law

Although often marginalized, guestworkers are an integral part of the United States economy. In 2006 alone, the U.S. government certified visas for 18,736 temporary workers. The program expanded in subsequent years and continues to grow each year. Despite its broad scope, huge impact on the labor force, and the extensive existing legislation regarding it, the guestworker program has permitted most employers of guestworkers to eschew the regulations or find loopholes, resulting in a system that is largely exploitative. Abuse of workers begins in their home countries, intensifies during the period of employment, and often continues even after employment terminates. Workers …

Misclassifying The Insurance Policy: The Unforced Errors Of Unilateral Contract Characterization, Hazel Beh, Jeffrey W. Stempel

Cardozo Law Review

No abstract provided.

Discharge Of A Contract Where Both Parties Are In Breach: Alliance Concrete Singapore Pte Ltd V Comfort Resources Pte Ltd, Chee Ho Tham

Research Collection Yong Pung How School Of Law

This case note examines the most recent attempt by the Court of Appeal to provide further guidance on: (a) how the doctrine of discharge of contract by breach operates when both parties are in breach of their contract obligations; and (b) when a promisee is entitled to rely on an alternate basis to justify its election to discharge a contract for the promisor’s breach when the basis originally relied upon and communicated to the promisor is ultimately found to be legally insufficient.

The Division Of Matrimonial Assets: A Mathematical Methodology As A "Check"? Ajr V. Ajs, Siyuan Chen

Research Collection Yong Pung How School Of Law

In a recent High Court decision concerning the division of matrimonial assets, the Judge developed an extensive (and somewhat mathematical) methodology “as a rough check” to his discretionary powers in determining a “just and equitable” division of the matrimonial assets. This introduced a new perspective to an exercise long considered to be impossible to be mathematically precise. This piece considers the extent of the utility of the new methodology.

Summary Of Brown Insurance Agency, Inc. V. Star Insurance Co., 126 Nev. Adv. Op. No. 31, Ammon Francom

Nevada Supreme Court Summaries

An appeal from a district court order granting summary judgment.

Sheleg Lavan V. Ashkelon Municipality, Edmond E. Levy, Edna Arbel, Neal Hendel

Translated Opinions

Facts: The respondent, the Ashkelon municipal government, issued a tender for the provision of cleaning services. The tender documents set a minimum bid price in accordance with the exact amount of the wages for cleaning workers as determined in a government circular establishing a national standard for such wages. Respondent 2 submitted the lowest and ultimately winning bid. As part of the tender process, respondent 2 explained its ability to pay the minimum wage while also covering expenses and earning a profit by noting its expectations that a percentage of its workers at any given time would not have acquired …

Stevens V. Publicis: The Rise Of "No E-Mail Modification" Clauses?, Stephanie Holmes

Washington Journal of Law, Technology & Arts

E-mails occupy an ambiguous space between informal oral conversation and formal written documents. Their legal significance in contract modification is, however, becoming increasingly clear. In April 2008, the Supreme Court of New York, Appellate Division, decided Stevens v. Publicis, S.A. and in the process, raised the legal status of e-mail exchanges in the context of contract modification. Before Stevens v. Publicis, S.A., an e-mail could constitute a “signed writing” under New York law, thus satisfying the statute of frauds. An e-mail exchange could also amend a contract if, for instance, it had been validated by the parties’ reliance on …

They Can Do What!? Limitations On The Use Of Change-Of-Terms Clauses, Peter A. Alces, Michael M. Greenfield

Faculty Publications

No abstract provided.

The (Ir)Relevance Of Harmonization And Legal Diversity To European Contract Law - A Perspective From Psychology, Gary Low

Research Collection Yong Pung How School Of Law

Differences between contract laws of Member States are often said to impose costs on and deter cross-border trade, and in order to increase cross-border trade, these contract laws ought to be harmonized. This article promises a paradigm shift in considering whether there is a need for harmonization; and if so, what form it ought to take. A behavioural approach is adopted to answer two underlying questions: how do actors think about these differences when they decide to contract? How does the form of harmonization influence such decisions? Insights from disciplines like cognitive and social psychology are identified and applied to …

The Statute Of Frauds And Oral Promises Of Job Security The Tenuous Distinction Between Performance And Excusable Nonperformance, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Principles Of The Law Of Software Contracts: Some Highlights, Robert A. Hillman, Maureen O'Rourke

Cornell Law Faculty Publications

The final draft of the Principles of the Law of Software Contracts ("Principles") was unanimously approved by the American Law Institute membership in May of 2009. The goal of the project is to “clarify and unify the law of software transactions.” However, the Principles will not become law in any jurisdiction unless and until a court adopts them, so only time will tell whether the project will accomplish this goal. Nevertheless, one thing is certain. The current law of software transactions, a mish-mash of common law, Article 2 of the Uniform Commercial Code, and federal intellectual property law, among other …