Contracts Commons^™

After Tackett: Incomplete Contracts For Post-Employment Healthcare, Maria O'Brien

Faculty Scholarship

This paper examines the recent U.S. Supreme Court retiree health care decision in Tackett v. M & G Polymers and focuses, in particular, on the ostensibly odd silence with respect to a critical contract term — whether the parties in fact agreed that these benefits were vested. Although the union in Tackett insisted these welfare benefits were clearly intended to vest and the employer now asserts they can be modified at any time, the collective bargaining agreement and supporting documents are ambiguous on this question. This paper examines how and why this “silence” persisted for so many decades and concludes …

Opinion & Dissent: Magic Words, Lori D. Johnson

Scholarly Works

No abstract provided.

From British Westinghouse To The New Flamenco: Misunderstanding Mitigation, Victor P. Goldberg

Faculty Scholarship

Both the venerable British Westinghouse decision and the current New Flamenco case have been analyzed in terms of mitigation. Properly understood, in neither is mitigation relevant. Although in the former, the House of Lords came to the right result, the replacement of the substandard turbines with new superior ones was not to mitigate damages — the buyer would have installed the new turbines even had the Westinghouse turbines met the contractual specifications. Even if Westinghouse’s failure accelerated the replacement (which it almost certainly did not) it would have been a mistake to compensate the buyer for the cost of the …

Variation In Boilerplate: Rational Design Or Random Mutation?, Stephen J. Choi, G. Mitu Gulati, Robert E. Scott

Faculty Scholarship

Standard contract doctrine presumes that sophisticated parties choose their terminology carefully because they want courts or counterparts to understand what they intended. The implication of this “Rational Design” model of rational behavior is that courts should pay careful attention to the precise phrasing of contracts. Using a study of the sovereign bond market, we examine the Rational Design model as applied to standard-form contracting. In NML v. Argentina, federal courts in New York attached importance to the precise phrasing of the boilerplate contracts at issue. The industry promptly condemned the decision for a supposedly erroneous interpretation of a variant of …

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 …

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.