Martin Shapiro
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780199256488
- eISBN:
- 9780191600234
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256489.003.0009
- Subject:
- Political Science, Comparative Politics
The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law ...
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The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law derived from merchant practice. Shapiro’s paper, which was originally published in The State and Freedom of Contract (ed. Harry Scheiber, Stanford University Press) in 1998) first introduces the Lex Mercatoria (the law of merchants) in relation to freedom of contract and contract law, and then discusses globalizing tendencies in contract law, doctrine, and jurisprudence, before moving on to globalizing tendencies in contract practice, using the legal doctrine of conflict of laws as a baseline for measurement of globalization tendencies. Here, Lex Mercatoria (or general principles of law) often play a substantial part in the resolution of contract disputes, particularly where arbitration is involved. Shapiro goes on to deal with the unification of private law in the United States in the 1920s (the trans-state harmonization of contract law), which he uses as a benchmark to assess the massive post-Second World War movement to a global law of contract. Aspects addressed include the globalization of contracting practice and law, the American-style contract (in relation to franchising law and mineral (non-oil) development contracts), and developments in business organization and law institutions.Less
The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law derived from merchant practice. Shapiro’s paper, which was originally published in The State and Freedom of Contract (ed. Harry Scheiber, Stanford University Press) in 1998) first introduces the Lex Mercatoria (the law of merchants) in relation to freedom of contract and contract law, and then discusses globalizing tendencies in contract law, doctrine, and jurisprudence, before moving on to globalizing tendencies in contract practice, using the legal doctrine of conflict of laws as a baseline for measurement of globalization tendencies. Here, Lex Mercatoria (or general principles of law) often play a substantial part in the resolution of contract disputes, particularly where arbitration is involved. Shapiro goes on to deal with the unification of private law in the United States in the 1920s (the trans-state harmonization of contract law), which he uses as a benchmark to assess the massive post-Second World War movement to a global law of contract. Aspects addressed include the globalization of contracting practice and law, the American-style contract (in relation to franchising law and mineral (non-oil) development contracts), and developments in business organization and law institutions.
Erin A. O'Hara and Larry E. Ribstein
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195312898
- eISBN:
- 9780199871025
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195312898.003.0003
- Subject:
- Political Science, American Politics
This chapter focuses on the legal treatment of choice of law to illustrate one important function of choice-of-law clauses: predictability. Without these clauses, the parties must rely on a morass of ...
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This chapter focuses on the legal treatment of choice of law to illustrate one important function of choice-of-law clauses: predictability. Without these clauses, the parties must rely on a morass of legal rules that give them at best vague ideas about what rules apply to their relationships. This chapter describes the choice-of-law theories that scholars have developed and courts have applied over the last century, with an emphasis on the current choice-of-law rules for contracts. The current system is unsatisfying because it leaves parties with little ability to know at the time of entering into their contract what law will govern their relationships and transactions and facilitates the passage and maintenance of bad laws. Unfortunately, Congress, the state legislatures, and the Supreme Court have consistently failed to help contracting parties escape from the confusing common law choice-of-law rules. The chapter concludes by demonstrating that enforcement of choice-of-law clauses is the best hope for enabling contracting parties to obtain predictability and the best-fitting governing law.Less
This chapter focuses on the legal treatment of choice of law to illustrate one important function of choice-of-law clauses: predictability. Without these clauses, the parties must rely on a morass of legal rules that give them at best vague ideas about what rules apply to their relationships. This chapter describes the choice-of-law theories that scholars have developed and courts have applied over the last century, with an emphasis on the current choice-of-law rules for contracts. The current system is unsatisfying because it leaves parties with little ability to know at the time of entering into their contract what law will govern their relationships and transactions and facilitates the passage and maintenance of bad laws. Unfortunately, Congress, the state legislatures, and the Supreme Court have consistently failed to help contracting parties escape from the confusing common law choice-of-law rules. The chapter concludes by demonstrating that enforcement of choice-of-law clauses is the best hope for enabling contracting parties to obtain predictability and the best-fitting governing law.
Michael Lobban
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258826
- eISBN:
- 9780191705168
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258826.003.0007
- Subject:
- Law, Legal History
This chapter on contract law in the 19th century begins with a discussion of the age of freedom of contract. It then discusses the impact of legal treatises, the influence of procedure, and the ...
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This chapter on contract law in the 19th century begins with a discussion of the age of freedom of contract. It then discusses the impact of legal treatises, the influence of procedure, and the social and economic context of contracting.Less
This chapter on contract law in the 19th century begins with a discussion of the age of freedom of contract. It then discusses the impact of legal treatises, the influence of procedure, and the social and economic context of contracting.
EYAL ZAMIR and BARAK MEDINA
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195372168
- eISBN:
- 9780199776078
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195372168.003.09
- Subject:
- Law, Philosophy of Law
This chapter discusses contract law. Ordinarily, market transactions do not involve infringements of deontological constraints. For this reason (and since they usually involve money or easily ...
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This chapter discusses contract law. Ordinarily, market transactions do not involve infringements of deontological constraints. For this reason (and since they usually involve money or easily monetized goods), standard cost-benefit analysis is particularly apt for analyzing contract law. Nevertheless, it is argued that certain deontological constraints apply to contracting behavior and that combining deontological constraints with economic analysis of contract law, may be fruitful. The chapter briefly surveys the deontological constraints pertinent to contract law and critically examines the standard economic response to them. It then demonstrates how deontological constraints may be integrated with economic analysis of the contracting stage, focusing on the doctrines of mistake and misrepresentation. Last, it highlights the differences between economic and deontological analyses of contract performance and breach, and discusses the difficulties facing integration of deontological constraints with the economic analysis of contract remedies, given the current state of the pertinent theories.Less
This chapter discusses contract law. Ordinarily, market transactions do not involve infringements of deontological constraints. For this reason (and since they usually involve money or easily monetized goods), standard cost-benefit analysis is particularly apt for analyzing contract law. Nevertheless, it is argued that certain deontological constraints apply to contracting behavior and that combining deontological constraints with economic analysis of contract law, may be fruitful. The chapter briefly surveys the deontological constraints pertinent to contract law and critically examines the standard economic response to them. It then demonstrates how deontological constraints may be integrated with economic analysis of the contracting stage, focusing on the doctrines of mistake and misrepresentation. Last, it highlights the differences between economic and deontological analyses of contract performance and breach, and discusses the difficulties facing integration of deontological constraints with the economic analysis of contract remedies, given the current state of the pertinent theories.
Michael Lobban
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258826
- eISBN:
- 9780191705168
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258826.003.0012
- Subject:
- Law, Legal History
This chapter shows that despite the pervasive language of freedom of contract in mid-19th-century England, consumers had little bargaining power over the terms of the contracts they entered into for ...
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This chapter shows that despite the pervasive language of freedom of contract in mid-19th-century England, consumers had little bargaining power over the terms of the contracts they entered into for goods or services. While there were some moves towards developing consumer protection, the common law developed its rules on the implied obligations of sellers and suppliers, largely in commercial contexts. The relative weakness of consumers is reflected in the fact that they were more likely to find themselves faced with claims that they were prevented by express terms in a standard form contract from recovering for contractual misperformance by a powerful adversary.Less
This chapter shows that despite the pervasive language of freedom of contract in mid-19th-century England, consumers had little bargaining power over the terms of the contracts they entered into for goods or services. While there were some moves towards developing consumer protection, the common law developed its rules on the implied obligations of sellers and suppliers, largely in commercial contexts. The relative weakness of consumers is reflected in the fact that they were more likely to find themselves faced with claims that they were prevented by express terms in a standard form contract from recovering for contractual misperformance by a powerful adversary.
Margaret Jane Radin
- Published in print:
- 2012
- Published Online:
- October 2017
- ISBN:
- 9780691155333
- eISBN:
- 9781400844838
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691155333.003.0012
- Subject:
- Law, Company and Commercial Law
This chapter considers “public” and hybrid regulatory solutions for boilerplate. It first examines the U.S. preference for private, market solutions, with particular emphasis on its tendency to ...
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This chapter considers “public” and hybrid regulatory solutions for boilerplate. It first examines the U.S. preference for private, market solutions, with particular emphasis on its tendency to provide for disclosure rather than substantive regulation of boilerplate, along with state legislation and judge-made law that goes beyond disclosure to create substantive regulations of contract law in particular areas. It then discusses issues associated with industry-specific regulation; piecemeal “fixes” to current law that may be enacted through legislation, imposed by agency rulemaking, or developed by judge-made law; and hybrid regimes in which private initiatives would be supported or protected by legislation or judge-made law. It also explores regulation in form of black lists, white lists, or grey lists and the problem of piecemeal adjudication. Finally, it looks at comprehensive regulation by drawing on the case of the European Union.Less
This chapter considers “public” and hybrid regulatory solutions for boilerplate. It first examines the U.S. preference for private, market solutions, with particular emphasis on its tendency to provide for disclosure rather than substantive regulation of boilerplate, along with state legislation and judge-made law that goes beyond disclosure to create substantive regulations of contract law in particular areas. It then discusses issues associated with industry-specific regulation; piecemeal “fixes” to current law that may be enacted through legislation, imposed by agency rulemaking, or developed by judge-made law; and hybrid regimes in which private initiatives would be supported or protected by legislation or judge-made law. It also explores regulation in form of black lists, white lists, or grey lists and the problem of piecemeal adjudication. Finally, it looks at comprehensive regulation by drawing on the case of the European Union.
Alec Stone Sweet
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780199256488
- eISBN:
- 9780191600234
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256489.003.0010
- Subject:
- Political Science, Comparative Politics
The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law ...
More
The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law derived from merchant practice. Stone Sweet’s paper traces the development of a transnational legal system, comprised of a national contract law and a network of arbitration houses that compete to supply third-party dispute resolution to the international commercial world. The paper is divided into two parts. The first discusses, in a theoretical manner, obstacles to the emergence of a stable network of traders engaged in relatively long-range, impersonal exchange, focusing on three generic problems of human community: cooperation and commitment, transaction costs, and institutional choice and governance. The second part examines three quite different regimes that have governed transnational commercial activity: from the mediaeval law merchant, to the Westphalian state system and its institutional failings (including discussion of conflict of laws practices), and – the principal focus of the chapter – the new Lex Mercatoria and its institutionalization.Less
The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law derived from merchant practice. Stone Sweet’s paper traces the development of a transnational legal system, comprised of a national contract law and a network of arbitration houses that compete to supply third-party dispute resolution to the international commercial world. The paper is divided into two parts. The first discusses, in a theoretical manner, obstacles to the emergence of a stable network of traders engaged in relatively long-range, impersonal exchange, focusing on three generic problems of human community: cooperation and commitment, transaction costs, and institutional choice and governance. The second part examines three quite different regimes that have governed transnational commercial activity: from the mediaeval law merchant, to the Westphalian state system and its institutional failings (including discussion of conflict of laws practices), and – the principal focus of the chapter – the new Lex Mercatoria and its institutionalization.
Larry E. Ribstein and Erin O'Hara
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195312898
- eISBN:
- 9780199871025
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195312898.001.0001
- Subject:
- Political Science, American Politics
Cheaper transportation, faster communication, and lowered trade barriers have made people, firms, and their assets much more mobile. This increasing mobility has strained traditional notions that ...
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Cheaper transportation, faster communication, and lowered trade barriers have made people, firms, and their assets much more mobile. This increasing mobility has strained traditional notions that laws operate within geographic borders. Instead, some nations find their laws powerless to control or regulate behavior, while others pass laws that have profound effects on assets and activities worldwide. Today, states increasingly act as hawkers of legal rules in a market for law where people and firms often can shop for those regimes that they find most desirable. A California resident can incorporate her shipping business in Delaware, register her ships in Panama, hire her employees from Hong Kong, place her earnings in an asset-protection trust formed in the Cayman Islands, and enter into a same-sex marriage in Massachusetts or Canada, and in doing so, she can enjoy the California sunshine while at least potentially avoiding many facets of the state's laws. The law market carries the promise of improving our lives as well as the quality of the laws that govern us because it helps to discipline interest group attempts to pass laws that impose costs on society. But the law market also threatens governments' ability to protect its citizens from harmful private conduct. Given this trade-off, the book argues that simple contractual choice-of-law rules can help maximize the beneficial effects of the law market while tempering its costs. This approach often is superior to attempts to federalize legal rules in the United States or to harmonize legal rules across nations. Moreover, lawmakers have powerful incentives to enforce parties' bargains regarding the applicable law in order to attract or retain mobile firms and residents. The book shows how their insights and recommendations apply across a wide variety of legal problems, including corporate governance, securities, franchise, trust, property, marriage, living will, surrogacy, and general contract regulations. This book therefore provides a useful template for analyzing the role of law in an increasingly mobile world.Less
Cheaper transportation, faster communication, and lowered trade barriers have made people, firms, and their assets much more mobile. This increasing mobility has strained traditional notions that laws operate within geographic borders. Instead, some nations find their laws powerless to control or regulate behavior, while others pass laws that have profound effects on assets and activities worldwide. Today, states increasingly act as hawkers of legal rules in a market for law where people and firms often can shop for those regimes that they find most desirable. A California resident can incorporate her shipping business in Delaware, register her ships in Panama, hire her employees from Hong Kong, place her earnings in an asset-protection trust formed in the Cayman Islands, and enter into a same-sex marriage in Massachusetts or Canada, and in doing so, she can enjoy the California sunshine while at least potentially avoiding many facets of the state's laws.
The law market carries the promise of improving our lives as well as the quality of the laws that govern us because it helps to discipline interest group attempts to pass laws that impose costs on society. But the law market also threatens governments' ability to protect its citizens from harmful private conduct. Given this trade-off, the book argues that simple contractual choice-of-law rules can help maximize the beneficial effects of the law market while tempering its costs. This approach often is superior to attempts to federalize legal rules in the United States or to harmonize legal rules across nations. Moreover, lawmakers have powerful incentives to enforce parties' bargains regarding the applicable law in order to attract or retain mobile firms and residents.
The book shows how their insights and recommendations apply across a wide variety of legal problems, including corporate governance, securities, franchise, trust, property, marriage, living will, surrogacy, and general contract regulations. This book therefore provides a useful template for analyzing the role of law in an increasingly mobile world.
Michael Lobban
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258826
- eISBN:
- 9780191705168
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258826.003.0011
- Subject:
- Law, Legal History
This chapter discusses notions of mistake in contract formation. Topics covered include mistake in equity, mistake at common law, and mistake of identity.
This chapter discusses notions of mistake in contract formation. Topics covered include mistake in equity, mistake at common law, and mistake of identity.
Michael Lobban
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258826
- eISBN:
- 9780191705168
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258826.003.0014
- Subject:
- Law, Legal History
This chapter on restitutionary remedies in the 19th century covers waiver of tort, mistaken payments, failure of consideration, money paid, equity, common law, and the redefinition of ...
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This chapter on restitutionary remedies in the 19th century covers waiver of tort, mistaken payments, failure of consideration, money paid, equity, common law, and the redefinition of ‘quasi-contract’.Less
This chapter on restitutionary remedies in the 19th century covers waiver of tort, mistaken payments, failure of consideration, money paid, equity, common law, and the redefinition of ‘quasi-contract’.
Michael Lobban
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258826
- eISBN:
- 9780191705168
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258826.003.0009
- Subject:
- Law, Legal History
This chapter discusses the requirement for consideration in English contract law in the 19th century. The fact that the courts did not enforce gratuitous promises, or ‘bare pacts’ unless made by ...
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This chapter discusses the requirement for consideration in English contract law in the 19th century. The fact that the courts did not enforce gratuitous promises, or ‘bare pacts’ unless made by deed, was a cornerstone of English contract law. In order to be binding as a contract, any ‘informal’ promise, made without a deed, had to be given for some ‘consideration’. In theory, consideration was ‘the material cause of every contract or agreement, or that thing in expectation of which each party is induced to give his consent to what is stipulated reciprocally between both parties’. In practice, it was something ‘for the Benefit of the Defendant, or to the Trouble or Prejudice of the Plaintiff’. Any benefit had to move from the plaintiff or promisee, for a stranger to the consideration could not sue on it.Less
This chapter discusses the requirement for consideration in English contract law in the 19th century. The fact that the courts did not enforce gratuitous promises, or ‘bare pacts’ unless made by deed, was a cornerstone of English contract law. In order to be binding as a contract, any ‘informal’ promise, made without a deed, had to be given for some ‘consideration’. In theory, consideration was ‘the material cause of every contract or agreement, or that thing in expectation of which each party is induced to give his consent to what is stipulated reciprocally between both parties’. In practice, it was something ‘for the Benefit of the Defendant, or to the Trouble or Prejudice of the Plaintiff’. Any benefit had to move from the plaintiff or promisee, for a stranger to the consideration could not sue on it.
Kent Greenawalt
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199756131
- eISBN:
- 9780199855292
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199756131.003.0009
- Subject:
- Law, Philosophy of Law
The law of contracts is a major part of modern private law, and the law's treatment of contracts is the subject of extensive scholarly attention in the United States. This chapter explores questions ...
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The law of contracts is a major part of modern private law, and the law's treatment of contracts is the subject of extensive scholarly attention in the United States. This chapter explores questions about contract interpretation similar to those concerning wills. These include: How far should courts be guided by objective meaning, how far by the subjective intent of the parties? How general or contextual should objective meaning be taken to be? When should courts “write in” terms that parties have failed to supply—a power that is quite limited for wills—and how should they go about that task? If various contractual provisions point in different directions, should a court give each its apparent meaning, even at the cost of an unwieldy totality, or bend the language of some terms to make the whole contract work well? What evidences of meaning should courts allow?Less
The law of contracts is a major part of modern private law, and the law's treatment of contracts is the subject of extensive scholarly attention in the United States. This chapter explores questions about contract interpretation similar to those concerning wills. These include: How far should courts be guided by objective meaning, how far by the subjective intent of the parties? How general or contextual should objective meaning be taken to be? When should courts “write in” terms that parties have failed to supply—a power that is quite limited for wills—and how should they go about that task? If various contractual provisions point in different directions, should a court give each its apparent meaning, even at the cost of an unwieldy totality, or bend the language of some terms to make the whole contract work well? What evidences of meaning should courts allow?
Gerhard Dannemann
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199533114
- eISBN:
- 9780191705526
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199533114.003.0007
- Subject:
- Law, Comparative Law, Law of Obligations
This chapter presents an overview of issues of concurrent liability. Topics covered include concurrent liability within unjustified enrichment, unjustified enrichment and contract law, unjustified ...
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This chapter presents an overview of issues of concurrent liability. Topics covered include concurrent liability within unjustified enrichment, unjustified enrichment and contract law, unjustified enrichment and negotiorum gestioun, justified enrichment and tort law, and unjustified enrichment and property law.Less
This chapter presents an overview of issues of concurrent liability. Topics covered include concurrent liability within unjustified enrichment, unjustified enrichment and contract law, unjustified enrichment and negotiorum gestioun, justified enrichment and tort law, and unjustified enrichment and property law.
Vincent D. Rougeau
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199739813
- eISBN:
- 9780199866120
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199739813.003.0006
- Subject:
- Religion, History of Christianity
This chapter presents a brief legal history of contract law in the United States and identifies multiple ways in which it includes a bias toward market decisions and often excludes fundamental ...
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This chapter presents a brief legal history of contract law in the United States and identifies multiple ways in which it includes a bias toward market decisions and often excludes fundamental concerns of justice. The chapter is organized as follows. Section 1 describes the three major understandings of justice in the Catholic intellectual tradition. Section 2 relates those areas to a particular aspect of Anglo-American contract law and policy. Section 3 evaluates how the law addresses justice concerns and assesses its strengths and limitations in light of Catholic conceptions of justice. Finally, Section 4 offers some suggestions about the future direction of contract law and its potential for being a force for economic justice in society.Less
This chapter presents a brief legal history of contract law in the United States and identifies multiple ways in which it includes a bias toward market decisions and often excludes fundamental concerns of justice. The chapter is organized as follows. Section 1 describes the three major understandings of justice in the Catholic intellectual tradition. Section 2 relates those areas to a particular aspect of Anglo-American contract law and policy. Section 3 evaluates how the law addresses justice concerns and assesses its strengths and limitations in light of Catholic conceptions of justice. Finally, Section 4 offers some suggestions about the future direction of contract law and its potential for being a force for economic justice in society.
Margaret Jane Radin
- Published in print:
- 2012
- Published Online:
- October 2017
- ISBN:
- 9780691155333
- eISBN:
- 9781400844838
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691155333.003.0001
- Subject:
- Law, Company and Commercial Law
This book examines standardized form contracts, also known as boilerplate. In the past, “contract” was interpreted as a bargained-for exchange transaction between two parties who each consent to the ...
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This book examines standardized form contracts, also known as boilerplate. In the past, “contract” was interpreted as a bargained-for exchange transaction between two parties who each consent to the exchange. Bargained-for exchange represents contract in a world of voluntary agreement—World A (for Agreement). Standardized form contracts, on the other hand, belong to World B (for Boilerplate). World B doesn't fit the theory, the rationale, of contract law. This book explores judicial oversight of boilerplate through the legal doctrines of unconscionability and voidness as against public policy, among others. It also considers the problem of boilerplate rights deletion schemes as well as attempts to bring such schemes under the aegis of traditional contract theories. This chapter provides an overview of worlds A and B as well as varieties of World B contracts, boilerplate as a method of contract formation, and two problems arising from boilerplate: normative degradation and democratic degradation.Less
This book examines standardized form contracts, also known as boilerplate. In the past, “contract” was interpreted as a bargained-for exchange transaction between two parties who each consent to the exchange. Bargained-for exchange represents contract in a world of voluntary agreement—World A (for Agreement). Standardized form contracts, on the other hand, belong to World B (for Boilerplate). World B doesn't fit the theory, the rationale, of contract law. This book explores judicial oversight of boilerplate through the legal doctrines of unconscionability and voidness as against public policy, among others. It also considers the problem of boilerplate rights deletion schemes as well as attempts to bring such schemes under the aegis of traditional contract theories. This chapter provides an overview of worlds A and B as well as varieties of World B contracts, boilerplate as a method of contract formation, and two problems arising from boilerplate: normative degradation and democratic degradation.
Steven J. Burton
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195337495
- eISBN:
- 9780199868650
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195337495.001.0001
- Subject:
- Law, Law of Obligations
This book examines the American law of contract interpretation in detail. Intended primarily for lawyers, judges, legal scholars, and law students, the book focuses attention on the elements of ...
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This book examines the American law of contract interpretation in detail. Intended primarily for lawyers, judges, legal scholars, and law students, the book focuses attention on the elements of contract interpretation — the evidentiary facts that are legally relevant when interpreting a contract. The book describes and analyzes how courts do and should perform three practical tasks in contract interpretation. First, courts identify the terms to be interpreted (under the parol evidence rule); second, courts decide whether a contract is relevantly ambiguous; third, fact-finders (judges or juries) resolve any ambiguities that appear. The book examines these issues through the lens of three theories that are supposed to tell us how to perform the three tasks to further the goals of contract interpretation. These theories are literalism, objectivism, and subjectivism. In the last chapter, the author makes a novel proposal, which he calls “objective contextual interpretation”.Less
This book examines the American law of contract interpretation in detail. Intended primarily for lawyers, judges, legal scholars, and law students, the book focuses attention on the elements of contract interpretation — the evidentiary facts that are legally relevant when interpreting a contract. The book describes and analyzes how courts do and should perform three practical tasks in contract interpretation. First, courts identify the terms to be interpreted (under the parol evidence rule); second, courts decide whether a contract is relevantly ambiguous; third, fact-finders (judges or juries) resolve any ambiguities that appear. The book examines these issues through the lens of three theories that are supposed to tell us how to perform the three tasks to further the goals of contract interpretation. These theories are literalism, objectivism, and subjectivism. In the last chapter, the author makes a novel proposal, which he calls “objective contextual interpretation”.
Lucinda Miller
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199606627
- eISBN:
- 9780191731716
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199606627.001.0001
- Subject:
- Law, EU Law
The emergence of a European contract law is one of the more significant legal developments in Europe today. The complexities that lie at its heart also make it one of the more fascinating areas of ...
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The emergence of a European contract law is one of the more significant legal developments in Europe today. The complexities that lie at its heart also make it one of the more fascinating areas of legal study. European Contract Law: Exploring Europeanization examines the origins of the discipline and its subsequent evolution. It brings the discussion up-to-date with full analysis of the debate on the Common Frame of Reference and the future that this ambiguous instrument may have in the contemporary European legal framework. One of the central themes of the book is exploration of the multi-level, open architecture of the EU legal order and the implications of such governance arrangements for the EU’s private law programme. The book demonstrates that the key to understanding European contract law in the 21st century lies in adopting a perspective and mechanisms suitable for a legal order populated by multiple sources of private law. Legal pluralism is offered as a theoretical construct in relation to which the future of European private law might be shaped. Legal pluralism forces consideration of diversity’s normative appeal and readjusts the analytical spotlight beyond the traditional, centralised, legislative, ‘command and control’ means of regulation. In so doing, softer mechanisms are introduced for the governance of contract law; mechanisms that enable coordination between the different sites at which contract law operates. This reorientation in thinking about European contract law, indeed about Europeanization itself, enables the inevitable diversity and pluralism that is a feature of multi-level Europe to be captured within a framework that maximises the opportunities for mutual transformations and learning.Less
The emergence of a European contract law is one of the more significant legal developments in Europe today. The complexities that lie at its heart also make it one of the more fascinating areas of legal study. European Contract Law: Exploring Europeanization examines the origins of the discipline and its subsequent evolution. It brings the discussion up-to-date with full analysis of the debate on the Common Frame of Reference and the future that this ambiguous instrument may have in the contemporary European legal framework. One of the central themes of the book is exploration of the multi-level, open architecture of the EU legal order and the implications of such governance arrangements for the EU’s private law programme. The book demonstrates that the key to understanding European contract law in the 21st century lies in adopting a perspective and mechanisms suitable for a legal order populated by multiple sources of private law. Legal pluralism is offered as a theoretical construct in relation to which the future of European private law might be shaped. Legal pluralism forces consideration of diversity’s normative appeal and readjusts the analytical spotlight beyond the traditional, centralised, legislative, ‘command and control’ means of regulation. In so doing, softer mechanisms are introduced for the governance of contract law; mechanisms that enable coordination between the different sites at which contract law operates. This reorientation in thinking about European contract law, indeed about Europeanization itself, enables the inevitable diversity and pluralism that is a feature of multi-level Europe to be captured within a framework that maximises the opportunities for mutual transformations and learning.
Robert D. Cooter and Ariel Porat
- Published in print:
- 2014
- Published Online:
- October 2017
- ISBN:
- 9780691151595
- eISBN:
- 9781400850396
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691151595.003.0001
- Subject:
- Law, Comparative Law
This book examines how the law of torts, contracts, and restitution can be improved by showing how private law reduces the cost of accidents, lubricates bargains, and encourages unrequested benefits. ...
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This book examines how the law of torts, contracts, and restitution can be improved by showing how private law reduces the cost of accidents, lubricates bargains, and encourages unrequested benefits. It considers the two pervasive rules of tort law that provide incentives for actors to reduce accident costs: strict liability and negligence. It also explains how contract law achieves effiency through the remedy of damages and how restitution law allows benefactors to recover gains that their beneficiaries wrongfully obtained from them. The book makes three central claims: misalignments in tort law should be removed; in contract law, promisee's incentives should be improved; and the law should recognize some right of compensation for those who produce unrequested benefits. Each claim is based on the desire to reform private law and to make it more effective in promoting social welfare.Less
This book examines how the law of torts, contracts, and restitution can be improved by showing how private law reduces the cost of accidents, lubricates bargains, and encourages unrequested benefits. It considers the two pervasive rules of tort law that provide incentives for actors to reduce accident costs: strict liability and negligence. It also explains how contract law achieves effiency through the remedy of damages and how restitution law allows benefactors to recover gains that their beneficiaries wrongfully obtained from them. The book makes three central claims: misalignments in tort law should be removed; in contract law, promisee's incentives should be improved; and the law should recognize some right of compensation for those who produce unrequested benefits. Each claim is based on the desire to reform private law and to make it more effective in promoting social welfare.
Michael Lobban
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258826
- eISBN:
- 9780191705168
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258826.003.0013
- Subject:
- Law, Legal History
This chapter discusses contractual remedies in the 19th century. Topics covered include penalties and liquidated damages, quantum meruit and expectation damages, remoteness of damage, and specific ...
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This chapter discusses contractual remedies in the 19th century. Topics covered include penalties and liquidated damages, quantum meruit and expectation damages, remoteness of damage, and specific performance.Less
This chapter discusses contractual remedies in the 19th century. Topics covered include penalties and liquidated damages, quantum meruit and expectation damages, remoteness of damage, and specific performance.
Margaret Jane Radin
- Published in print:
- 2012
- Published Online:
- October 2017
- ISBN:
- 9780691155333
- eISBN:
- 9781400844838
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691155333.003.0007
- Subject:
- Law, Company and Commercial Law
This chapter examines current judicial oversight of contract law, and more specifically the extent to which boilerplate is regulated as contract. It first considers the three categories of the ...
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This chapter examines current judicial oversight of contract law, and more specifically the extent to which boilerplate is regulated as contract. It first considers the three categories of the normal, traditional oversight doctrines for contracts: coercion or duress; fraud, deception, or misrepresentation; and invalid contract formation. It then explores the doctrine of unconscionability and a related wild-card doctrine that makes it possible for courts to declare a contract void because it undermines public policy. It also discusses the jurisprudential problem with “wild-card” doctrines before concluding with an analysis of how traditional oversight doctrines are faring with regard to boilerplate rights deletion schemes, with particular emphasis on arbitration clauses, choice of forum clauses, exculpatory clauses, and limitation of remedy.Less
This chapter examines current judicial oversight of contract law, and more specifically the extent to which boilerplate is regulated as contract. It first considers the three categories of the normal, traditional oversight doctrines for contracts: coercion or duress; fraud, deception, or misrepresentation; and invalid contract formation. It then explores the doctrine of unconscionability and a related wild-card doctrine that makes it possible for courts to declare a contract void because it undermines public policy. It also discusses the jurisprudential problem with “wild-card” doctrines before concluding with an analysis of how traditional oversight doctrines are faring with regard to boilerplate rights deletion schemes, with particular emphasis on arbitration clauses, choice of forum clauses, exculpatory clauses, and limitation of remedy.
