Contracts Commons^™

Death Of Contracts, The, Franklin G. Snyder, Ann M. Mirabito

Duquesne Law Review

No abstract provided.

Sheppard V. Taylor, 5 Peters 675 (1831): Deception On The High Seas And The Quest For Lost Wages, Steven Zerhusen

Legal History Publications

This Article follows the case of the ship Warren, which set sail in 1806 to take part in illicit trade with the Spanish colonies, unbeknownst to all on board except for the supercargo. After dealing with the suicide of the captain and capture in Concepcion Bay, Chile, the crew languished for years in Spanish prison. After trying for almost 20 years the proceeds of the ship were finally returned to the owners, and the crew filed petition. Not until 1831 was their libel upheld, and wages from their voyage 25 years earlier to be paid to the crew. This article …

Food For Thought: Genetically Modified Seeds As De Facto Standard Essential Patents, Benjamin M. Cole, Brent J. Horton, Ryan G. Vacca

Law Faculty Scholarship

For several years, courts have been improperly calculating damages in cases involving the unlicensed use of genetically-modified (GM) seed technology. In particular, when courts determine patent damages based on the hypothetical negotiation method, they err in exaggerating these damages to a point where no rational negotiator would agree. In response, we propose a limited affirmative defense of an implied license due to the patent’s status as a de facto standard essential patent. To be classified as a de facto standard essential patent, the farmer must prove three elements that reflect the peculiarities of GM seeds used in farming: (1) dominance, …

Judicial Vision Of Contract: The Constructed Circle Of Assent And Unconscionability, The, John E. Jr. E. Murray Jr.

Duquesne Law Review

No abstract provided.

Future Of Fault In Contract Law, The, Robert A. Hillman

Duquesne Law Review

No abstract provided.

Situational Duress And The Aberrance Of Electronic Contracts, Nancy S. Kim

Chicago-Kent Law Review

This article explains how the aberrant nature of electronic contracts has unique implications, which contract law should recognize. Companies, taking advantage of these unique implications, may use electronic contracts in an unfair and coercive manner, which is why this article proposes expanding the definition of duress to include “situational duress.” Situational duress would not encompass all electronic contracting scenarios, but would be limited to situations where (1) a drafting company uses an electronic contract to block consumer access to a product or service; (2) the consumer has a “vested interest” in that product or service; and (3) the consumer accepts …

The Judicial Vision Of Contract - The Constructed Circle Of Assent And Printed Terms, John E. Murray Jr.

St. Thomas Law Review

The perennial dilemma of modern contract law is the effect to be accorded standardized terms, the printed "boilerplate" terms that appear in the overwhelming majority of contracts and are typically ignored. The dilemma has been exacerbated by recent decisions addressing the operative effect of standardized terms that appear after the contract has been formed. The confusion emanating from such "terms-later" cases has made even the chronology of contract-making uncertain.

Comparative And Normative Analysis Of Damages Under The Sga And The Cesl, Reza Beheshti

St. Thomas Law Review

This article strives to analyze the rules concerning monetary damages under two different legal regimes for the sale of goods: the Sale of Goods Act of 1979 ("SGA") and the Proposal for a Common European Sales Law in 2011 ("CESL"). It is not the purpose of this article to provide an exhaustive exposition of the doctrines of either regime. Instead, the focus will be on the central aspects of monetary damages, such as the aim of damages and general rules governing the measure of damages. It should be noted that inevitably there will be some references to the commentaries on …

Ghosts Have Rights Too! A New Era In Contractual Rights: Third-Party Invocation In Forum Selection Clauses, Monika L. Woodard

St. Thomas Law Review

In the wake of non-party adhesion becoming an increasingly large problem for the federal and state courts, this comment proposes a modification to the test set forth by Judge Posner in Raintree. This comment also makes a call to the Supreme Court for action in determining a ceiling standard for non-party invocation of forum selection clauses. Part II of this comment considers the direction of the Supreme Court in past decisions on forum selection clauses in general and the implications of these decisions on the future of the clauses. Part III discusses the relatively new question surrounding forum selection clauses …

To Pay Or Not To Pay: Interpretation Of Section 302 Of The Labor Management Relations Act As Evidenced By Titan Tire, Dylan Mooney

American University Business Law Review

No abstract provided.

Legal Uncertainty And Aberrant Contracts: The Choice Of Law Clause, William J. Woodward Jr.

Chicago-Kent Law Review

Legal uncertainty about the applicability of local consumer protection can destroy a consumer’s claim or defense within the consumer arbitration environment. What is worse, because the consumer arbitration system cannot accommodate either legal complexity or legal uncertainty, the tendency will be to resolve cases in the way the consumer’s form contract dictates, that is, in favor of the drafter. To demonstrate this effect and advocate statutory change, this article focuses on fee-shifting statutes in California and several other states. These statutes convert very common one-way fee-shifting terms (consumer pays business’s attorneys fees if business wins but not the other way …

Some Economic Insights Into Application Of Payments Doctrine: Walker-Thomas Revisited, James W. Bowers

Chicago-Kent Law Review

Contractual relations frequently involve multiple transactions, which might give rise either to a single aggregate debt, or else to multiple differing obligations. This conflict creates the application of payments problem. Unsurprisingly, the common law developed long-standing rules for the application of partial payments to multiple, but remedially distinguishable debts. The subject is made timely again by the recent enactments of the 1999 revision of Article 9 of the Uniform Commercial Code. Article 9 instructs courts how to solve the application of payments problem when some partial payments might satisfy “purchase money” security interests. The enactments repealed the common law application …

Tenure, The Aberrant Consumer Contract, James J. White

Chicago-Kent Law Review

The tenure contract that prevails among the faculty at nearly all American colleges and universities is unusual, for the employee, who is normally the weaker, is favored by the contract over the employer, who is normally the stronger. The first part of the paper explains what tenure means and how it came about in the early twentieth century. The second part of the paper argues that the contract protects not only academic freedom but also bad teaching and weak scholarship. Finally the paper argues that the tenure contract should be abolished or restricted to minimize the inefficiencies that are now …

Are You Free To Contract Away Your Right To Bring A Negligence Claim?, Scott J. Burnham

Chicago-Kent Law Review

This article explores the enforceability of the exculpatory clause—a contract term in which one party agrees to give up the right to bring a negligence claim against the other party. A spectrum of views on whether a contract containing such a clause is aberrant or not is presented and analyzed, followed by the author’s view of the rubric by which the enforceability of the clause should be measured. The article concludes by deconstructing one contract in which the clause was found.

The Restatement (Second) Of Contracts Reasonably Certain Terms Requirement: A Model Of Neoclassical Contract Law And A Model Of Confusion And Inconsistency, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Contract Law And The Hand Formula, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Mutual Assent, Normative Degradation, And Mass Market Standard Form Contracts––A Two-Part Critique Of Boilerplate: The Fine Print, Vanishing Rights And The Rule Of Law (Part I), Steven W. Feldman

Cleveland State Law Review

Although her book has achieved great renown, receiving high praise from prominent commentators, with plaudits such as “groundbreaking,” “a great achievement,” and a “masterpiece,” I respectfully suggest that the book has problems on both doctrinal and normative grounds. In my Article, I summarize the author’s argument on normative degradation, identify my concerns, and propose an alternative formulation. My counter thesis is that both statute and court decisions properly support consumer rights in the area of voluntary consent for mass-market standard form contracts. Besides being the first full-length critique of Boilerplate, this Article also has contributed some original observations to the …

Wrap Contract Morass, Nancy Kim

Faculty Scholarship

No abstract provided.

Boilerplate And Consent, Nancy Kim

Faculty Scholarship

In Margaret Jane Radin's book, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law, Radin argues that boilerplate is a social problem leading to normative and democratic degradation of important rights. In his review of Radin’s book, Omri Ben-Shahar outlines two approaches to regulation by boilerplate. He labels the first as “autonomism,” which asks “how such one-sided dictation of terms by firms fits within a liberal account of good social order, of democratic control and participation, and of individual autonomy.” Ben-Shahar views Radin as representative of the autonomists. The second way of viewing regulation-by-boilerplate is “to ask …

Situational Duress And The Aberrance Of Electronic Contracts, Nancy Kim

Faculty Scholarship

This article explains how the aberrant nature of electronic contracts has unique effects. Companies take advantage of these unique effects and use electronic contracts in a coercive manner. This article proposes the new defense of “situational duress” to address the exploitative use of electronic contracts in certain situations.

Part I explains why electronic contracts are aberrant and explains how the developing law in this area deviates from traditional contract doctrine. This section also discusses how the electronic form affects consumer behavior and understanding of contract terms. Part II provides background to the traditional doctrine of duress and introduces the concept …