Contracts Commons^™

Textual Harassment: A New Historicist Reappraisal Of The Parol Evendence Rule With Gender In Mind, Hila Keren

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Estudio Comparativo De La Formacion De Contratos Electronicos En El Derecho Estadounidense Con Referencia Al Derecho International Y Al Derecho Mexicano, Roberto Rosas

Faculty Articles

The author presents the underlying fundamental contractual principles in American law, and in this respect, tire Uniform Commercial Code, with particular emphasis in how electronic transactions are regulating, and therefore in the Uniform Computer Information Transaction Act, the Uniform Electronic Transactions Act, and the Electronic Signatures in Global and National Commerce Act. Concerning international law, the United Nations Convention on Contracts for the International Sale of Goods and concerning Mexican law, with reference to the Commerce Code and the Federal Civil Code.

An Alternative Paradigm For Valuing Breach Of Registration Rights And Loss Of Liquidity, Royce De R. Barondes

University of Richmond Law Review

No abstract provided.

A Tyrannosaurus-Rex Aptly Named "Sue": Using A Disputed Dinosaur To Teach Contract Defenses, Miriam A. Cherry

Faculty Publications

(Excerpt)

In August 1990, commercial fossil hunters from the Black Hills Geologic Institute ("Black Hills") discovered the remains of an almost complete Tyrannosaurus Rex skeleton located in the Badlands of South Dakota. Named "Sue" after her discoverer, the fossil immediately became the subject of controversy. Although many of the facts were disputed, the collectors gave the purported owner of the land, a Native American rancher named Maurice Williams, a check for $5,000, which he cashed, and the collectors excavated Sue. The fair market value of a T-Rex skeleton with that degree of completeness was over eight million dollars.

Once the …

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 …

Freedom, Compulsion, Compliance And Mystery: Reflections On The Duty Not To Enforce A Promise, Jeffrey M. Lipshaw

Suffolk University Law School Faculty Works

In this essay, I suggest the difference between the law of consensual relationships (i.e., contracts) and the morality of those relationships is one of compulsion and freedom. In the former, we find ourselves being compelled by, or compliant with, a rule some distance removed from the basic norm; in the latter we find ourselves in touch, constantly and sometimes in the face of more visceral obligatory rules, with a far deeper and more fundamental (transcendental) sense of fairness. Moral decisions are the ones made without any threat of compulsion from the law. The clearest example in commercial relationship of a …

Lawyers' Bargaining Ethics, Contract, And Collaboration: The End Of The Legal Profession And The Beginning Of Professional Pluralism, Scott R. Peppet

Publications

This Article combines contractarian economics and traditional ethical theory to argue for a radical revision of the legal profession's codes of ethics. That revision would end the legal profession as we know it-one profession, regulated by one set of ethical rules that apply to all lawyers regardless of circumstance. It would replace the existing uniform conception of the lawyer's role with a more heterogeneous profession in which lawyers and clients could contractually choose the ethical obligations under which they wanted to operate. This "contract model" of legal ethics, in which lawyers could opt in and out of various ethical constraints, …

Unity And Pluralism In Contract Law, Nathan B. Oman

Faculty Publications

No abstract provided.

Second Class Athletes: The Usoc's Treatment Of Its Paralympians, Jason Kroll

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Evolving Business And Social Norms And Interpretation Rules, Nancy Kim

Faculty Scholarship

Rapid societal and technological changes - such as the rise in electronic commerce, increasing diversity and globalization - create contract interpretation issues that require a dynamic approach. While many modern contractual disputes arise from a confluence of factors, contract doctrine has tended to adopt a unitary approach to problems with an emphasis on interpretation of words. This article argues that non-intuitive interpretation rules work to the disadvantage of language and cultural minorities and should only be used if their purpose is to determine the intent of the parties or to uphold a policy or legislative objective. A dynamic approach is …

A Troubling Equation In Contracts For Government Funded Scientific Research: "Sensitive But Unclassified" = Secret But Unconstitutional, Leslie Gielow Jacobs

McGeorge School of Law Scholarly Articles

No abstract provided.

Corporations And Autonomy Theories Of Contract: A Critique Of The New Lex Mercatoria, Nathan B. Oman

Faculty Publications

One of the central problems of contracts jurisprudence is the conflict between autonomy theories of contract and efficiency theories of contract. One approach to solving this conflict is to argue that in the realm of contracts between corporations, autonomy theories have nothing to say because corporations are not real people with whose autonomy we need to be concerned. While apparently powerful, this argument ultimately fails because it implicitly assumes theories of the corporation at odds with economic theories of law. Economics, in turn, offers a vision of the firm that is quite hospitable to autonomy theories of contract. The failure …

Sales, Carolyn L. Dessin, Keith A. Rowley, Robyn L. Meadows, Larry T. Garvin

Akron Law Faculty Publications

This article provides a comprehensive survey of significant developments in sales law under Article 2 of the Uniform Commercial Code (UCC) during the year 2004. The authors analyze key judicial decisions that interpret and apply various provisions of Article 2, covering topics such as contract formation, the statute of frauds, warranties, performance, remedies, and risk of loss. By examining these cases, the article offers insights into how courts are shaping the landscape of sales law, highlighting trends and emerging issues that practitioners and scholars should be aware of.

Derivatives And The Bankruptcy Code: Why The Special Treatment?, Franklin R. Edwards, Edward R. Morrison

Faculty Scholarship

The collapse of Long Term Capital Management (LTCM) in Fall 1998 and the Federal Reserve Bank's subsequent efforts to orchestrate a bailout raise important questions about the structure of the Bankruptcy Code. The Code contains numerous provisions affording special treatment to financial derivatives contracts, the most important of which exempts these contracts from the "automatic stay" and permits counterparties to terminate derivatives contracts with a debtor in bankruptcy and seize underlying collateral. No other counterparty or creditor of the debtor has such freedom; to the contrary, the automatic stay prohibits them from undertaking any act that threatens the debtor's assets. …

The Contractual Basis Of The Enforcement Of Exclusive And Non-Exclusive Choice Of Court Agreements, Tiong Min Yeo

Research Collection Yong Pung How School Of Law

This article argues that, although choice of court agreements can be viewed from a procedural or contractual perspective, the predominant approach in Singapore and English law in respect of the exclusive jurisdiction agreement has been to give primacy to the rationale of the enforcement of a contractual bargain, tempered by a judicial discretion in its enforcement within the procedural jurisdictional context. It is also argued that the only difference between exclusive and non-exclusive jurisdiction agreements lies in the content and scope of the agreement between the parties, so the same contractual approach (as tempered by procedural considerations) should be applied …

Restitution, Tiong Min Yeo

Research Collection Yong Pung How School Of Law

Little of significance was decided on the law of restitution in 2004. There was nevertheless a smattering of cases dealing with points relevant to the principles of the law of restitution, sometimes directly, and sometimes indirectly.

Contract Formation And Mistake In Cyberspace – The Singapore Experience, Andrew B.L. Phang

Research Collection Yong Pung How School Of Law

The present article analyses the many important issues that are raised by what is probably the first case on Internet mistake – the Singapore High Court decision of Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] 2 SLR 594. In addition to the law of (especially, unilateral) mistake, issues relating to the formation of a contract will be considered (including the law relating to offer and acceptance with regard to both website advertisements as well as electronic mail transactions, and the weakness of (and, hence, need to reform) the doctrine of consideration).

Is The Contractor More Secure With A Priority Right? A Functional Analysis Of Article 286 Of Prc Contract Law, Wei Zhang

Research Collection Yong Pung How School Of Law

In recent years, China’s economic boom has drawn considerable attention all around the world. Real estate development is among the strongest pillars that support the fast growing GDP of this country. When fascinated by the shining residential buildings, office towers and public facilities sprouting across the country, however, we are also surprised at the mountains of the outstanding debts that Chinese contractors are not able to collect. Statistics shows that the aggregate amount of overdue payment to contractors has increased steadily during the past 15 years nationwide, with about $440 million in 1990, $2.4 billion in 1992, $3.7 billion in …

Common-Law Disclosure Duties And The Sin Of Omission: Testing The Meta-Theories, Kathryn Zeiler, Kimberly D. Krawiec

Georgetown Law Faculty Publications and Other Works

This Article represents the first attempt to study empirically the factors that cause courts to impose disclosure duties on bargaining parties in some circumstances, but not in others. We analyze data coded from 466 decisions spanning a wide array of jurisdictions and covering over two hundred years. The results are mixed. In some instances our data support the conventional wisdom relating to common-law disclosure duties. For example, we find that courts are more likely to require the disclosure of latent, as opposed to patent, defects and are more likely to require disclosure when the parties are in a fiduciary or …

Obscene Contracts: The Doctrine Of Unconscionability And Hospital Billing Of The Uninsured, George A. Nation Iii

Kentucky Law Journal

No abstract provided.

Common-Law Disclosure Duties And The Sin Of Omission: Testing The Meta-Theories, Kimberly D. Krawiec, Kathryn Zeiler

Faculty Scholarship

Since ancient times, legal scholars have explored the vexing question of when and what a contracting party must disclose to her counterparty, even in the absence of explicit misleading statements. This fascination has culminated in a set of claims regarding which factors drive courts to impose disclosure duties on informed parties. Most of these claims are based on analysis of a small number of non-randomly selected cases and have not been tested systematically. This article represents the first attempt to systematically test a number of these claims using data coded from 466 case decisions spanning over a wide array of …

On Collaboration, Organizations, And Conciliation In The General Theory Of Contract, Ethan J. Leib

Faculty Scholarship

Daniel Markovits's Contract and Collaboration is a thought-provoking and ground-breaking inquiry into the ethics of contract. It argues that the philosophical foundation of contract may be found in what Markovits calls the collaborative view: a principle of forming respectful communities of collaboration where contractors treat each other as ends in themselves and refrain from treating each other as mere instrumentalities. Markovits acknowledges that there are three prototypical forms of contracts: (1) person-to-person; (2) person-to-organization; and (3) organization-to-organization. He is refreshingly honest in arguing that his theory of contract only addresses Type (1) contracts. I wish to argue here that this …

Party Autonomy In Choice Of Commercial Law: The Failure Of Revised U.C.C. § 1-301 And A Proposal For Broader Reform, Jack M. Graves

Scholarly Works

No abstract provided.

Contractual Incompleteness: A Transactional Perspective, Avery W. Katz

Faculty Scholarship

Recent scholarship in the field of contract law has concentrated on contractual incompleteness-that is, on the fact that except in the simplest and most basic transactions, contracting parties do not work out all of the relevant details and contingencies of their relationship at the outset. The reasons for incomplete contracts are varied. Sometimes parties deliberately leave terms unresolved, trusting future negotiations or social norms to fill in any problems that emerge. Other times, they leave terms unresolved without realizing they have done so, in part because they devote limited attention or resources to their negotiations and in part because contracts …

Introduction, David J. Seipp

Faculty Scholarship

Have we come to bury Lochner, or to praise it? Lochner v. New York,' decided 100 years ago, gave its name to an era in which judges struck down popular statutes that regulated hours, wages, and conditions of work, on grounds that such labor regulations violated a constitutional liberty of contract. After 1937, Lochnerism and Lochnerizing were more or less uniformly condemned by judges and law professors alike. Recently, some scholars have tried to resurrect the Lochner approach, presumably as a way to render much of the twentieth-century regulatory state unconstitutional.

On Discovering Doctrine: "Justice" In Contract Agreement, Peter A. Alces

Faculty Publications

No abstract provided.

Suing Amy: A Love Story, Cameron Stracher

NYLS Law Review

No abstract provided.

Comptroller Of City Of New York V. Mayor Of New York (Decided July 29, 2004), Leslie Spitalnick

NYLS Law Review

No abstract provided.

Featuring The Three Tenors In La Triviata, Victor P. Goldberg

Faculty Scholarship

In the “Three Tenors” case the FTC found an agreement to be an antitrust violation despite the fact that there was no way it could be anticompetitive. The Commission failed to heed the lessons of Coase’s classic paper on the nature of the firm, making a sharp distinction between activities within a firm (legal) and across firm boundaries (not legal). Analytically, there should be no distinction. The decision to integrate activities by contract rather than ownership is a matter of relative transactions costs. Since the boundaries of the firm are, ultimately, an economic decision reflecting the costs and benefits of …

Risk Management In Long-Term Contracts, Victor P. Goldberg

Faculty Scholarship

Long-term contracts are designed to manage risk. After a brief discussion of why it is unhelpful to invoke risk aversion for analyzing serious commercial transactions between sophisticated entities, this paper focuses on adaptation to changed circumstances. In particular, it considers the options to abandon and the discretion to change quantity. It then analyzes a poorly designed contract between Alcoa and Essex showing how the parties misframed their problem and designed a long-term contract that was doomed to fail.