Contracts Commons^™

An Economic Analysis Of The Guaranty Contract, Avery W. Katz

Faculty Scholarship

Guaranty arrangements, in which one person stands as surety for a second person's obligation to a third, are ubiquitous in commercial transactions and in commercial law. In recent years, however, scholarly attention to the topic has been scant; and no one has systematically analyzed this body of law and practice from an economic policy perspective. Accordingly, this Article attempts to outline the basic economic logic underlying the guaranty relationship, and applies the results to a variety of specific issues in government policy and private planning. It poses and answers three main questions: First, why would a creditor prefer to make …

Covenant And Contract, Steven Nock, Margaret F. Brinig

Journal Articles

In this article we ask, "What distinguishes a covenant from a mere contract, and what role does this distinction play for natural law?" Both of us have thought substantially about covenant over the past several years. The concept of covenant comes to us originally from religious sources, so we have paid explicit attention to what the Bible and organized religion have to say about covenant. We have also drawn from our own disciplines of law, economics, and sociology as they explain or draw from the initial concepts.

Covenant is a concept that takes us beyond contract. Indeed, the idea that …

Inertia And Preference In Contract Negotiation: The Psychological Power Of Default Rules And Form Terms, Russell Korobkin

Vanderbilt Law Review

In The Problem of Social Cost,' the foundational article of the law and economics movement, Ronald Coase suggested that when transaction costs are zero, the initial allocation of a legal entitlement is irrelevant to its eventual ownership. Assuming no transaction costs, the Coase Theorem predicts that if party A values an entitlement more than does party B, A will keep the entitlement if it is initially allocated to him, and he will buy it if it is originally allocated to B. This powerful insight depends on the behavioral assumption that an individual's valuation of entitlements does not depend on ownership; …

Relational Contract Theory And The Concept Of Exchange, Paul J. Gudel

Buffalo Law Review

No abstract provided.

Resolving The Paradox Between Legal Theory And Legal Fact: The Judicial Rejection Of The Theory Of Efficient Breach, Craig S. Warkol

Cardozo Law Review

No abstract provided.

The Contract For Deed As A Mortgage: The Case For The Restatement Approach, Grant S. Nelson

BYU Law Review

No abstract provided.

Guidelines For Granting Aquaculture Leases., Fisheries Wa, Aquaculture Development Council, Aquaculture Council Of Wa

Fisheries Management Papers

The Western Australian Government is committed to the development of aquaculture within a framework of environmental sustainability. This discussion paper will deal with issues related to the granting of leases for aquaculture and will set out a process for the management of aquaculture leases and associated licences. It will be the basis for presaring the draft Ministerial Policy Guidelines for the granting of aquaculture leases.

Replacing Strict Liability With A Contract-Based Products Liability Regime, Richard C. Ausness

Law Faculty Scholarly Articles

When strict products liability first appeared on the scene some thirty-five years ago, it was heralded as a boon to consumers whose claims to compensation had hitherto been frustrated by the law of sales. Warranty law, it was said, worked fairly well in purely "commercial" transactions, but tort law did a better job in cases where ordinary consumers suffered personal injuries or property damage from defective products. To be sure, defenders of warranty law pointed out that the newly-drafted Uniform Commercial Code (the "Code" or "U.C.C.") was much more consumer friendly than the old Uniform Sales Act. Nevertheless, the proponents …

An Essay On Uncertainty And Fact-Finding In Civil Litigation, With Special Reference To Contract Cases, Alex Stein

Faculty Scholarship

No abstract provided.

Is There A Duty To Negotiate In Good Faith?, Michael Philip Furmston

Research Collection Yong Pung How School Of Law

One of the most interesting questions concerning modern contract lawyers is whether, and if so when, there may be a duty on parties to a contract to negotiate in good faith? This may seem an odd question for an English lawyer to raise, granted the refusal of the House of Lords in Walford v. Miles [1992] 2 A.C. 128 to recognise even the effectiveness of an agreement to negotiate in good faith but this case has not escaped cogent criticism (Neill (1992) 108 L.Q.R. 405) and it rests on an axiom (that this is a duty which cannot be enforced) …

Contract Law, Robin Jean Davis, Louis J. Palmer Jr.

West Virginia Law Review

No abstract provided.

Street Smarts For Real Estate Lawyers: Conducting Successful Residential Real Estate Transactions, Oregon Law Institute, Pat G. Kaplan, Andrea L. Bushnell, Phillip C. Querin, Karen Estrada, Malcolm H. Scott, Topp J. Williams, Michael J. Scott, Alan L. Mitchell, Alan K. Brickley, Joan P. Snyder

Oregon Law Institute, 1998

Course Materials from the June 4, 1998 Program in Portland

Insurance Contracts And Judicial Discord Over Whether Liability Insurers Must Defend Insureds' Allegedly Intentional And Immoral Conduct: A Historical And Empirical Review Of Federal And State Courts' Declaratory Judgments--1900-1997 , Willy E. Rice

American University Law Review

No abstract provided.

Lifting The Veil Of Ignorance: Personalizing The Marriage Contract, Eric Rasmusen, Jeffrey E. Stake

Indiana Law Journal

Symposium: Law and the New American Family Held at Indiana University School of Law - Bloomington Apr. 4, 1997

Opportunities For And Limitations Of Private Ordering In Family Law (Symposium Roundtable), Jeffrey E. Stake, Michael Grossberg, Martha Fineman, Akhil Reed Amar, Regina Austin, Thomas S. Ulen

Indiana Law Journal

Symposium: Law and the New American Family Held at Indiana University School of Law - Bloomington Apr. 4, 1997

The New Marriage Contract And The Limits Of Private Ordering, Gregory S. Alexander

Indiana Law Journal

Symposium: Law and the New American Family Held at Indiana University School of Law - Bloomington Apr. 4, 1997

Toward Contractual Choice In Marriage, J. Mark Ramseyer

Indiana Law Journal

Symposium: Law and the New American Family Held at Indiana University Law School - Bloomington Apr. 4, 1997

Choice, Dependence, And The Reinvigoration Of The Traditional Family, Kathyn Abrams

Indiana Law Journal

Symposium: Law and the New American Family Held at Indiana University Law School Apr. 4, 2011

Restrictions On Forum-Selection Clauses In Franchise Agreements And The Federal Arbitration Act: Is State Law Preempted?, James Zimmerman

Vanderbilt Law Review

The use of forum-selection clauses in contracts continues to increase. Emboldened by the Supreme Court's endorsement of forum- selection clauses, large companies now frequently use these clauses in a variety of contracts. Contracting parties use these clauses in part to ensure that the parties can resolve any dispute in a convenient forum. Often, however, a party inserts a forum-selection clause to limit liability by increasing the barriers to litigation or arbitration. Typically, the party inserting the forum-selection clause has superior bargaining power and inserts into the contract a clause designating a forum remote to the other party, where any dispute …

Questioning The "New Consensus" On Promissory Estoppel: An Empirical And Theoretical Study, Robert A. Hillman

Cornell Law Faculty Publications

Professor Hillman presents evidence that contradicts several assumptions about how courts apply the doctrine of promissory estoppel. Although theorists have claimed the importance, even dominance, of the theory as a ground for enforcing promises, he shows that this theory is remarkably unsuccessful in the courts. Professor Hillman also demonstrates the crucial role of reliance in both successful and unsuccessful promissory estoppel cases, despite the "new consensus" that courts enforce promises without a showing of reliance. Finally, Professor Hillman shows that courts award damages flexibly in successful promissory estoppel cases, although analysts have claimed that courts strongly favor expectancy damages.

Professor …

The Best Law School Subject, Robert A. Hillman, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.

Metropolitanism, Progressivism, And Race, Edward A. Zelinsky

Articles

Professor Zelinsky examines three books on local government. Two of these, Cities Without Suburbs, by David Rusk, and Citistates, by Neal Peirce, call for metropolitanizing the governance of urban areas. Our Town, by David L. Kirp, John P. Dwyer, and Larry A. Rosenthal, explores the Mt. Laurel litigation and its aftermath and suggests that the land use authority of local governments be diminished through court-ordered zoning for low-income housing.

Professor Zelinsky is skeptical of these well-intentioned proposals. The metropolitan governments advocated by Rusk and Peirce would be less responsive than the smaller localities they would replace and less likely to …

Competition In Telecommunications, Oregon Law Institute, Michael T. Weirich, Charles L. Best, Arthur Butler, David C. Olson, Walter Hyer, Simon J. Ffitch, Bradley F. Tellam

Oregon Law Institute, 1998

Course Materials from the February 6, 1998 Program in Portland

The Implied Warranty Of Merchantability In Software Contracts: A Warranty No One Dares To Give And How To Change That, 16 J. Marshall J. Computer & Info. L. 393 (1998), Robert W. Gomulkiewicz

UIC John Marshall Journal of Information Technology & Privacy Law

Software publishers disclaim the implied warranty of merchantability because the repercussions of recognizing such warranties are unknown. The purpose underlying implied warranties of merchantability is to ensure that the consumer is receiving a product that meets a minimal standard of consumer expectation; however, this threshold is difficult to measure when attempting to measure consumer expectation of computer software. The proposed U.C.C. Article 2B seeks to remedy this problem by removing some of the ambiguity. The implied warranty of merchantability had its genesis in the English commodities markets. As an action in tort, the implied warranty of merchantability protected a buyer …

Decloaking Development Contracts, 16 J. Marshall J. Computer & Info. L. 403 (1998), Micalyn S. Harris

UIC John Marshall Journal of Information Technology & Privacy Law

Proposed Article 2B seeks to minimize the conflict between the software developer and a client as to whether the contract is for goods or services. If the contract is for goods, then the client would receive the protection of a buyer under Article 2 of the U.C.C. If the contract is for services, then Article 2 does not apply and the relationship is governed by contract and common law principles. Proposed Article 2B will resolve this conflict by recognizing that development contracts are a mixture of goods and services and will also seek to provide default rules. Section 2B-617(b) of …

Separation Of Powers And The Separate Treatment Of Contract Claims Against The Federal Government For Specific Performance, Richard Henry Seamon

Articles

No abstract provided.

Home Businesses, Llamas And Aluminum Siding: Trends In Covenant Enforcement, 31 J. Marshall L. Rev. 443 (1998), Katharine N. Rosenberry

UIC Law Review

No abstract provided.

Self-Help In Contract Law: An Examination And Proposal, Celia R. Taylor

Sturm College of Law: Faculty Scholarship

Contrary to the common perception that Americans are overly litigious, many disputes never reach the court room. One reason for this is the availability of self-help--actions taken without recourse to third party intervention. The author explores self- help doctrine in American commercial law. Specifically, she considers the availabilityof self-help under the Uniform Commercial Code and the Restatement (Second)of Contracts. She shows that self-help is widely supported in these sources but that in practice it is not properly understood or applied. She argues that self-help should be encouraged uniformly in all commercial transactionsand suggests an addition to existing statutes that would …

Involuntary Sale: Banishing An Owner From The Condominium Community, 31 J. Marshall L. Rev. 429 (1998), Michael C. Kim

UIC Law Review

No abstract provided.

Reinventing Common Interest Developments: Reflections On A Policy Role For The Judiciary, 31 J. Marshall L. Rev. 397 (1998), Evan Mckenzie

UIC Law Review

No abstract provided.