Contracts Commons^™

The Law Of Duress And The Economics Of Credible Threats, Oren Bar-Gill, Omri Ben-Shahar

Articles

This paper argues that enforcement of an agreement, reached under a threat to refrain from dealing, should be conditioned solely on the threat's credibility. When a credible threat exists, enforcement promotes social welfare and the threatened party's interests. If agreements backed by credible threats were not enforceable, the threatening party would not extort them and would instead refrain from deaing-to the threatened party's detriment. The doctrine of duress, which invalidates such agreements, hurts the coerced party. By denying enforcement when a credible threat exists, the duress doctrine precludes the threatened party from making the commitment necessary to reach agreement. Paradoxically, …

'Agreeing To Disagree': Filling Gaps In Deliberately Incomplete Contracts, Omri Ben-Shahar

Articles

Incomplete contracts have always been viewed as raising the following challenge for contract law: does the incompleteness-or, "indefiniteness," as it is usually called-rise to such a level that renders the agreement legally unenforceable? When the indefiniteness concerns important terms, it is presumed that the parties have not reached an agreement to which they intend to be bound. This "fundamental policy" is the upshot of the view that "contracts should be made by the parties, not by the courts."' When, in contrast, the indefiniteness concerns less important terms, courts supplement the agreement with gap fillers and enforce the supplemented contract.

Contracts Without Consent: Exploring A New Basis For Contractual Liability, Omri Ben-Shahar

Articles

This Essay explores an alternative to one of the pillars of contract law, that obligations arise only when there is "mutual assent "--when the parties reach consensus over the terms of the transaction. It explores a principle of "no-retraction," under which each party is obligated to terms it manifested and can retract only with some liability. In contrast to the all-or-nothing nature of the mutual assent regime, where preliminary forms of consent are either full-blown contracts or create no obligation, under the no-retraction regime, obligations emerge gradually, as the positions of the negotiating parties draw closer. Further, the no-retraction liability …

Threatening An Irrational Breach Of Contract, Oren Bar-Gill, Omri Ben-Shahar

Articles

When circumstances surrounding the contract change, a party might consider breach a more attractive option than performance. Threatening breach, this party may induce the other party to modify the original agreement. The contract law doctrine of modification determines whether and when these modifications are enforceable. To promote social welfare as well as the interests of the threatened party, the law should enforce modifications if and only if the modification demand is backed by a credible threat to breach. This paper argues that credibility is not a function of pecuniary interests alone. A decision to breach can be motivated also by …

Mutual Assent Versus Gradual Ascent: The Debate Over The Right To Retract, Omri Ben-Shahar

Articles

I ended Contracts Without Consent: Exploring a New Basis for Contract Liability with a reminder that the analysis was "lacking in rigor and in nuance" and that "[i]t remains for future work to explore the extent to which the approach developed. . . has the horsepower to resolve pragmatically the problems that have proven difficult for current doctrine and to examine whether these solutions advance the various social objectives associated with contract formation." Such "future work" arrived sooner than I expected. I have now had the privilege to read the three commentaries that the University of Pennsylvania Law Review solicited, …

Forward [To Freedom From Contract Symposium], Omri Ben-Shahar

Articles

This Symposium explores freedom from contract. When I was preparing to travel from my home in Ann Arbor to the University of Wisconsin where this Symposium was to be held, my 9-year-old son asked where I was headed. I explained that a bunch of people and I were going to meet and talk about freedom from contract, but the boy seemed unsure what this exchange was going to be about. I tried to translate: "It is about making promises that you don't really have to keep." This sounded surprising to him. He raised an inquisitive brow, and I knew he …

An Offer You Can't Revoke, Charles L. Knapp

Faculty Scholarship

No abstract provided.

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

All Faculty Scholarship

This piece focuses on the discovery of a T-Rex skeleton, and the contract formed between the private fossil collectors and the Native American rancher who ostensibly owned the land where the fossil was situated. Although the fossil was eventually sold at auction for over eight million dollars, the fossil collectors paid the rancher only $5,000 for its excavation. In addition to the rancher, the Sioux tribe and the Department of Justice also became involved in the case.

As described in my work, the law school Socratic method has come under attack in recent years. In response to such criticisms, the …

Forum Selection In International Contract Litigation: The Role Of Judicial Discretion, Hannah Buxbaum

Articles by Maurer Faculty

The United States is currently involved in negotiation of the Hague Convention on Exclusive Choice of Court Agreements, which would regulate the enforceability of forum-selection clauses in international contracts. That project - as well as the recent focus in globalization literature on more active judicial management of forum selection - draws attention to one unusual aspect of U.S. jurisdictional law: that dismissal on the basis of forum non conveniens is available even in cases arising out of contracts including negotiated forum selection clauses. This article examines the resulting tension between the right of contract parties to select a forum in …

Comparative Study Of The Formation Of Electronic Contracts In American Law With References To International And Mexican Law, Roberto Rosas

Faculty Articles

No abstract provided.

Fire, Metaphor, And Constitutional Myth-Making, Robert Tsai

Scholarly Articles in Law Reviews & Journals

From the standpoint of traditional legal thought, metaphor is at best a dash of poetry adorning lawyerly analysis, and at worst an unjustifiable distraction from what is actually at stake in a legal contest. By contrast, in the eyes of those who view law as a close relative of ordinary language, metaphor is a basic building block of human understanding. This article accepts that metaphor helps us to comprehend a court's decision. At the same time, it argues that metaphor plays a special role in the realm of constitutional discourse. Metaphor in constitutional law not only reinforces doctrinal categories, but …

Contracting With Tortfeasors: Mandatory Arbitration Clauses And Personal Injury Claims, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

People thinking about contractual arbitration clauses usually envision the resulting disputes as contractual in nature. However, there is also a group of cases in which the clauses are used to compel arbitration of personal injury claims. This article examines those cases, including the impact of the Federal Arbitration Act on their enforcement. Next, the article considers the ways in which these pre-dispute, mandatory arbitration clauses can disturb the traditional values of procedural justice, contractual fairness, and the enforcement of tort-based duties. Finally, the article proposes changes in the law of arbitration and evaluates whether such changes are politically feasible.

Is A Signed Offer Sufficient To Satisfy The Statute Of Frauds?, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

In this article, the author attempts to clarify the law on the issue of whether a signed offer is a “sufficient writing" to satisfy the statute of frauds requirement. The article seeks to demonstrate that much of the confusion among contract law treatises regarding this issue stems from the writers sometimes failing to distinguish clearly between "common law" state statutes of frauds and UCC Section 2-201. Given the large body of case law in support of allowing signed offers to satisfy the common law statute of frauds requirements, the author argues that courts should be more reluctant to interpret UCC …

Contracts – Only With Consent, Ronald J. Mann

Faculty Scholarship

My friend and former colleague Omri Ben-Shahar has established a reputation for providing nuanced and well-grounded applications of economic analysis to important problems of contract law. In recent years, he has undertaken the ambitious task of exploring a significant topic at the boundary of contract law: liability for problems that arise out of efforts to form a contract. The essay to which I reply, Contracts Without Consent: Exploring a New Basis for Contractual Liability, is his second work on that topic, following his 2001 article with Lucian Bebchuk entitled Precontractual Reliance. Collectively, these pieces provide a comprehensive analysis …

The Efficient Design Of Option Contracts: Principles And Applications, Avery W. Katz

Faculty Scholarship

The law of contracts has often treated options quite differently from other contractual transactions; for example, the characterization of a transaction as an option contract calls forth specially required formalities, but on the other hand often has the effect of releasing parties from doctrinal limitations on their contractual freedom, such as the duty to mitigate damages or the rule that holds excessively high liquidated damages void as penalties. Such differential treatment is challenging to explain from a functional viewpoint, in part because all contracts resemble options to the extent they are enforceable in terms of monetary damages, and in part …

Summary Of Ringle V. Bruton, Kirk Reynolds

Nevada Supreme Court Summaries

Ringle was the owner of the Stagecoach Casino and Hotel in Beatty, Nevada and hired Bruton in June 1992 to work as the general manager of the facility. Bruton agreed to a two-year contract with an annual gross salary of $44,990 as well as $1,800 in monthly bonuses provided certain goals were reached. Bruton was employed at the Stagecoach for four years. After two years, the parties did not execute a new contract, nor did they renew the old contract. After the contract expired in 1994, Ringle provided Bruton with a company car as well as periodic raises for which …

Summary Of United Nat’L Ins. Co. V. Frontier Ins. Co., Matt Wagner

Nevada Supreme Court Summaries

This case addresses an insurance company’s duties to defend and indemnify an insured under a comprehensive general liability (“CGL”) insurance policy. The court reviews the issue by examining the language of the specific CGL policy.

Internet Contracting And Standard Terms In The Global Electronic Age: Perspectives For Japan, James Maxeiner

All Faculty Scholarship

This piece is intended to show Japanese law students how their own everyday experiences raise significant domestic and international legal questions. It shows that a seemingly technical matter need not be boring, but can provide an example of practical application of law internationally and of the benefits that knowledge of foreign law can bring in assisting in understanding and improving domestic law. It discusses standard terms in licenses of information and software.

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 2003. 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.

Partnoy's Complaint: A Response, John C. Coffee Jr.

Faculty Scholarship

My article attempts to strike a balance and find a middle ground between the polar positions of those who favor strict liability (of whom Professor Partnoy is probably the most notable) and recent critics who believe it would produce market failure. Necessarily, those who take a middle position are exposed to fire from both sides. Although I admire Professor Partnoy's originality and incisive style, I do not believe that the market could easily survive his reforms and suspect that he has undervalued the hidden costs of strict liability. Deterrence is needed – but there can be too much of a …

Summary Of D. R. Horton, Inc. V. Green, 120 Nev. Adv. Op. 63, Hilary Barrett Muckleroy

Nevada Supreme Court Summaries

Appeal from a district court order denying a motion to compel arbitration.

Summary Of Kourafas V. Basic Food Flavors, Inc., 120 Nev. Adv. Op. 22, Hilary Barrett Muckleroy

Nevada Supreme Court Summaries

Appeal from a district court order dismissing appellant’s breach of contract claim and awarding attorney’s fees and costs to respondent.

Summary Of Nolm, Llc V. County Of Clark, Matt Wagner

Nevada Supreme Court Summaries

Clark County (“the County”) wanted to sell the remnants of two parcels of land after finishing constructing five lanes at the Desert Inn Arterial. The combined acreage of the two parcels totaled .49 acres. At a public auction, the County advertised the land under the former legal description, which described the property as being .92 acres. Neil Ohriner, the sole owner of Nolm, LLC, realized the legal property description was incorrect. He then bid on the parcels, winning them for $340,000.00. The Grant, Bargain, and Sale Deed delivered to escrow likewise incorrectly described the property as .92 acres. After escrow …

Summary Of Traffic Control Services V. United Rentals, 120 Nev. Adv. Rep. 19, Christopher Carson

Nevada Supreme Court Summaries

Philip A. Burkhardt and his employer, Traffic Control Services (Traffic Control) appealed the issuance of a preliminary injunction enforcing a noncompetiton covenant in favor of United Rentals (United), the purchaser of the corporate assets of NES Trench Shoring (NES), Burkhardt’s former employer. The main issue on appeal was Burkhardt’s contention that the covenant not to compete he made with NES could not be assigned during a corporate sale absent some consideration. Burkhardt, Traffic Control, United, and NES all specialize in renting and selling trench shoring equipment to underground construction contractors in the greater Las Vegas area. During 1999 and 2000 …

Summary Of Zhang V. Eighth Judicial Dist. Ct., 120 Nev. Adv. Rep. 104, Christopher Carson

Nevada Supreme Court Summaries

On February 1, 2004, Lanlin Zhang contracted to buy former realtor Frank Sorichetti’s Las Vegas home for $532,500. On February 3, 2004 Sorichetti told Zhang that he was terminating the sale “to stay in the home a little longer.” Sorichetti then stated that he would sell Zhang the home if she paid more money. Zhang agreed and another contract was drafted that same day reciting a sales price of $578,000. On February 16, 2004, Sorichetti notified Zhang that a murder had occurred in the home several years earlier, and that Zhang could cancel the sales contract if she desired. Subsequently, …

Exemptions Under Article 79 Of The Vienna Sales Convention, Peter Winship

Faculty Journal Articles and Book Chapters

No abstract provided.

Promissory Fraud Without Breach, Gregory Klass, Ian Ayres

Georgetown Law Faculty Publications and Other Works

This Article, in keeping with the theme of this Symposium, explores the possibility of promissory fraud liability where there is no breach of contract. It is well known that mere breach of contract is not sufficient to make out a claim of promissory fraud. This rule makes eminent sense, for a promisor who initially intended to perform may have later changed her mind. Here we pose the converse question: is it possible to have promissory fraud liability without a breach?

Oil And Gas Law: Recent Oklahoma Cases Interpreting Oil And Gas Joint Operating Agreements, Mark D. Christiansen

Oklahoma Law Review

No abstract provided.

At The Crossroads Of Federalism And Arbitration: The Application Of Prima Paint To Purportedly Void Contracts, Pierre H. Bergeron

Kentucky Law Journal

No abstract provided.

Economic Organization In The Construction Industry: A Case Study Of Collaborative Production Under High Uncertainty, William A. Klein, Mitu Gulati

Faculty Scholarship

No abstract provided.