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The different legal ideas of precontractual liability, contract formation, contract terms, and contract interpretation are all rolled into this chapter because they spring from a single set of facts: the negotiation and making of the contract for sale. The legal doctrines are treated separately, but their unification by one set of facts is emphasized. The chapter includes treatment of offer and acceptance, sufficient definiteness, formal requirements (or the lack of them), gapfilling, and the role of custom and practice, as well as common law doctrines like promissory estoppel and the parol evidence rule. The chapter gives generous comparative treatment to revocability and firm offers, the battle of the forms, contract modification, and subjective and objective intent. Civil law doctrines like abus de droit and culpa in contrahendo are also covered, and there is extensive treatment of good faith in international law.

Chapter 5 describes the principle of continuity, also called the principle of “stability” or “permanence,” in Argentina, Brazil, Chile, and Uruguay. The principle presumes employment contracts of indefinite duration where employers must provide cause to terminate the contract. The chapter describes how continuity provides judges and other adjudicators with the authority to protect workers against unfair dismissal, reinforce employer obligations despite contract modification and successorship, and reform precarious contracts into standard contracts of employment. The chapter then describes the uneven and weaker presence of continuity in the United States due to employment at will. It argues that employment at will needs to be derogated by statute, likely state by state. But despite the need to derogate employment at will, the chapter also underscores that about 15 percent of the U.S. workforce, that one employed in the public sector and in the unionized private sector, is not covered by employment at will. Moreover, even under employment at will, many private sector employees are covered by antidiscrimination, antiretaliation, tort, and public policies that together concoct a law of wrongful dismissal. Hence, while weak and uneven, some form of employment stability does pervade in the United States.

Chapter 4 describes the principle of nonwaiver in Latin America focusing on Argentina, Brazil, Chile, and Uruguay. It posits that employers and workers cannot waive labor rights, given by law, through contract. It shows how the principle is expressly stated in some positive law, in court opinions, and in legal scholarship. It also details how the principle is typically applied in controversies over contract terms and claim settlements. The chapter also shows that the principle surfaces in Latin American cases related to contract modification and novation, even when such contracts contain terms that meet or exceed minimum labor standards. Second, the chapter finds a nonwaiver principle in the United States, mostly in its protection of free labor under the Thirteenth Amendment and in the positive labor law and jurisprudence. However, the chapter also focuses on the particular problem of so-called “procedural” waivers sanctioned by the U.S. Supreme Court’s coerced readings of the Federal Arbitration Act (FAA). The U.S. Supreme Court permits employers to require employees to sign agreements to arbitrate legal claims, even if those legal claims are class or collective in scope. Evidence clearly shows that such “procedural waivers” undermine substantial labor rights. Because the U.S. Supreme Court has already ruled on the issue, we argue that such waivers need to either be legally banned or regulated by Congress, under its Thirteenth Amendment authority, so as to not undo workers’ rights in the United States and force workers to agree to terms they likely oppose. In fact, we argue that regulated arbitration might actually help to create legitimate labor courts in the United States, which that country still lacks.