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Contractual Terms and their Performance

Michael Lobban

in The Oxford History of the Laws of England: Volume XII: 1820–1914 Private Law

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 ... More

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

Devils in the Details: Long-Term Infrastructure Contracts

Alasdair Roberts

in The Logic of Discipline: Global Capitalism and the Architecture of Government

This chapter focuses on the infrastructure crisis faced by many countries throughout the era of liberalization. Many governments experimented with a new method of infrastructure development: the ... More

This chapter focuses on the infrastructure crisis faced by many countries throughout the era of liberalization. Many governments experimented with a new method of infrastructure development: the long-term infrastructure contract. A powerful commercial lobby pushed for its use, but this innovation proved just as problematic as many of the others promoted under the logic of discipline.Less

Resolving Ambiguities

Steven J. Burton

in Elements of Contract Interpretation

This chapter examines how fact-finders may resolve a relevant ambiguity in a contract lawfully, thereby giving a term or the contract a meaning. It considers the roles of judges and juries and the ... More

This chapter examines how fact-finders may resolve a relevant ambiguity in a contract lawfully, thereby giving a term or the contract a meaning. It considers the roles of judges and juries and the allowable elements of contract interpretation. It illustrates how to use the elements when presenting evidence or making interpretive arguments. The elements considered include a contract term's text and its context. The context, in turn, includes the contract document as a whole, the circumstances under which it was made, any relevant trade usages, any practical construction, a party's testimony about its intention, statements of intention during negotiations, the course of negotiations, and any prior course of dealing.Less

Objective Contextual Interpretation

Steven J. Burton

in Elements of Contract Interpretation

This chapter presents and justifies a normative theory of contract interpretation. It considers the three tasks of contract interpretation in terms of the relevant goals in order to determine which ... More

This chapter presents and justifies a normative theory of contract interpretation. It considers the three tasks of contract interpretation in terms of the relevant goals in order to determine which theories should guide performance of each task. In brief, the chapter endorses the parol evidence and four corners rules for identifying a written contract's terms. It endorses objectivism for determining whether a contract term is ambiguous. It also endorses objectivism when a fact-finder resolves any ambiguity that appears. Together, the theory constitutes “objective contextual interpretation.” The chapter concludes with a brief defense of a pluralist theory of contracts, which is the kind of theory that underlies this book.Less

The Termination and Transformation of Employment Contracts

Mark R. Freedland and Nicola Kountouris

in The Legal Construction of Personal Work Relations

This chapter completes the analysis of the legal construction of employment relations as contracts by concentrating on the termination of employment contracts and on the principal transformations ... More

This chapter completes the analysis of the legal construction of employment relations as contracts by concentrating on the termination of employment contracts and on the principal transformations which they may undergo. It begins by showing how, in English law, there are two distinct systems of legal regulation of the termination of employment — one contractual and the other extra-contractual — which co-exist in a state of separation but inter-dependency. The next section of the chapter explores the ways in which European legal systems shape the duration and termination of employment contracts, particularly by reference to the conceptual and regulatory affinities between ‘fixed-term’ and ‘open ended’ contractual arrangements. The chapter then pursues further the idea of dis-integrated regulation of the termination of employment, taking English law as the extreme case of such duality. Finally, the concluding section articulates a composite notion of the transformations which may take place in employment contracts, focusing on how employment contracts may be transferred between employing entities.Less

The Regulation of Long-Term Contracts in English Law

Ewan Mckendrick

in Good Faith and Fault in Contract Law

This chapter suggests that there may be a great need for adjustment in long-term contracts but the parties often insert force majeure, hardship, and other clauses intended to deal with change of ... More

This chapter suggests that there may be a great need for adjustment in long-term contracts but the parties often insert force majeure, hardship, and other clauses intended to deal with change of circumstances. What is required is a liberal approach by the courts that will recognize the need for flexibility, and will permit the enforcement of such clauses, even though they may be drafted in vague, flexible terms.Less

. Vertical Integration

NEIL M. KAY

in Pattern in Corporate Evolution

This chapter explores the nature of vertical integration. It also analyses the ability of transaction-cost economics to deal with vertical integration. The chapter begins by analysing the foundations ... More

This chapter explores the nature of vertical integration. It also analyses the ability of transaction-cost economics to deal with vertical integration. The chapter begins by analysing the foundations of transaction-cost economics. It then examines vertical integration in the petroleum industry and long-term contracts as a substitute for vertical integration. Finally, the chapter compares decision-making characteristics in markets and hierarchies.Less

Domestic Regulation

Peter Trepte

in Regulating Procurement: Understanding the Ends and Means of Public Procurement Regulation

This chapter examines the application of the objectives of procurement regulation in the context of a domestic procurement system. It considers the ways in which the various objectives of procurement ... More

This chapter examines the application of the objectives of procurement regulation in the context of a domestic procurement system. It considers the ways in which the various objectives of procurement regulation have been or may be pursued by governments in their own territories. The investigation is intended merely to set out the general structure of a domestic system of regulation and, together with the previous discussion of the potential objectives which may be pursued by way of procurement regulation, assist (particularly) developing and transition economies to appreciate both the need for regulation and the way in which such needs may be met. This chapter also discusses the organisation of procurement, procurement procedures such as competitive bidding procedures, value thresholds, procurement methods, elements of the competitive process, awarding of contracts, consultancy services, and terms of contract.Less

Cover

MALCOLM CLARKE

in Policies and Perceptions of Insurance Law in the Twenty-First Century

For insurers, the role of the contract terms are, first, to mark the boundaries of cover in accordance with established categories of risk and thus with their data on past losses. Secondly, terms are ... More

For insurers, the role of the contract terms are, first, to mark the boundaries of cover in accordance with established categories of risk and thus with their data on past losses. Secondly, terms are aimed at better risk management on the part of the policyholder. Against ‘thieves that break through and steal’, for example, discounts are available to those policyholders who fit their vehicles with tracking devices or their premises with CCTV. Moreover, insurers may specify the kind of locks to be fitted on doors and windows; and, to encourage people actually to lock the doors and windows, theft cover may be conditional on forcible entry.Less

Inequalities

Christian Gollier

in Pricing the Planet's Future: The Economics of Discounting in an Uncertain World

This chapter makes adaptations to the canonical models of the term structure developed so far, to recognize inequalities as crucial features of our world, arguing that even abstracting from the ... More

This chapter makes adaptations to the canonical models of the term structure developed so far, to recognize inequalities as crucial features of our world, arguing that even abstracting from the heterogeneous allocation of costs and benefits, the existence of huge wealth inequalities between and within countries necessitates such an adaptation. Two models are considered. In the first model, inequalities in society are introduced in the model examined in Part I of this book. However, it is assumed that individuals in this unequal society are able to share risk efficiently, and that they can implement mutually beneficial long-term credit contracts. In the second model, these assumptions are relaxed.Less

Interpretation of Contracts and Control of Unfair Terms in Asia: A Comparison

Stefan Vogenauer

in Contents of Contracts and Unfair Terms

This chapter concludes Volume III of Studies in the Contract Laws of Asia. It summarizes the main findings on the 13 Asian jurisdictions covered (China, Hong Kong, India, Indonesia, Japan, Korea, ... More

This chapter concludes Volume III of Studies in the Contract Laws of Asia. It summarizes the main findings on the 13 Asian jurisdictions covered (China, Hong Kong, India, Indonesia, Japan, Korea, Malaysia, Myanmar, the Philippines, Singapore, Taiwan, Thailand, and Vietnam). With regard to both the interpretation of contracts and the control of unfair terms, the various legal sources and their ‘Western’ sources of inspiration are described, questions of classification and terminology discussed, and the major substantive issues that arise across legal systems examined. The latter include the dichotomy of ‘subjective’ and ‘objective’ approaches to contractual interpretation; the admissible aids to interpretation, such as customs, usages, the commercial background, good faith, and the negotiations of the parties; the conflict between ‘literalist’ and ‘contextualist’ approaches, particularly with regard to gap-filling by way of implication of terms or ‘supplementary interpretation’; the ‘covert’ judicial control of unfair terms under general contract law doctrines, such as incorporation, interpretation, and the rules on procedural unfairness; the open control based on specific legislation on either particular types of term, unfair standard terms, or consumer contracts, and the supporting enforcement mechanisms. In conclusion, the chapter highlights the differences and similarities that can be observed across Asia, relates these to the wide variety of legal transfers that occurred in the relevant legal systems, and maps out issues for further research.Less

Whatever Works: Dualization and the Service Economy in Bismarckian Welfare States

Werner Eichhorst and Paul Marx

in The Age of Dualization: The Changing Face of Inequality in Deindustrializing Societies

The chapter compares employment structures in five Continental European welfare states, with a focus on private services. Despite a common trend to overcome institutional employment barriers by ... More

The chapter compares employment structures in five Continental European welfare states, with a focus on private services. Despite a common trend to overcome institutional employment barriers by creating a more divided labor market, a closer look reveals considerable differences between national patterns of standard and non-standard work. We identify five transformative pathways towards a more flexible and cheaper use of labor in Continental European welfare states: 1. defection from permanent contracts, 2. from full-time employment, 3. from dependent employment, 4. growing wage dispersion, and 5. government-sponsored labor cost reductions. The chapter shows that by relying on one or several of these options, each country developed a distinct solution for the labor cost problem in the service sector, which corresponds to a particular form of dualization.Less

Insurance and Society

MALCOLM CLARKE

in Policies and Perceptions of Insurance Law in the Twenty-First Century

The main issues in this chapter are whether insurance should be left entirely to the insurers, and insurance law to the lawyers. This chapter starts from the position that people should be free to ... More

The main issues in this chapter are whether insurance should be left entirely to the insurers, and insurance law to the lawyers. This chapter starts from the position that people should be free to contract insurance, like other services, as they wish, and that insurers should be free to write what terms they please. It asks whether, when, and how that freedom is, or should be, restrained. The main role of insurance in society is to spread risk and, if the risk materializes, to spread the resulting loss. Thus, the few who need it can be compensated from the contributions paid by the many who do not but might: people who are risk-averse and buy insurance can be assured that, if they were the ones in need, they too would be compensated.Less

Framing Incomplete Contracts

in Calculating Promises: The Emergence of Modern American Contract Doctrine

Incomplete contracts and the implication of terms in contract disputes are the subjects of a considerable debate in legal scholarship and judicial opinion. This debate plays an indirect role in a ... More

Incomplete contracts and the implication of terms in contract disputes are the subjects of a considerable debate in legal scholarship and judicial opinion. This debate plays an indirect role in a cultural conflict over the individual subject and has centered on questions of how courts should supply missing contract terms, as well as what those missing terms should be. This chapter discusses the significance and effects of this debate by looking at the major attempts to deal with the problem in the scholarly literature, and also examines the relationship of the various scholarly discussions of incompleteness to the implied covenant of good faith. Furthermore, it considers the division of functions between interpretation and the determination of legal relations, or construction. Finally, the chapter comments on hypothetical bargain theory and default rules analysis.Less

Fixed-term contracts and unemployment at the beginning of the employment career in Germany: does gender matter?

Karin Kurz

in The gender dimension of social change: The contribution of dynamic research to the study of women's life courses

This chapter examines to what extent women and men in West and East Germany are effected by fixed-term contracts and the risk of unemployment at the beginning of their career. The focus of this ... More

This chapter examines to what extent women and men in West and East Germany are effected by fixed-term contracts and the risk of unemployment at the beginning of their career. The focus of this chapter is on those employment entrants, allowing careful observation of how gender inequalities develop from the start of the employment career. At this stage, family work is not yet important to most people. Hence, if gender differences can be found, these are not attributed to the family obligations of men and women. In addition to discussing the outcomes of gender inequalities, the chapter also examines whether the risk of precarious unemployment or unemployment and gender inequality are associated with factors such as education, occupational class, vocational training, ethnic origin and region. More generally, the chapter aims to know whether precarious jobs and unemployment become more or less likely for all labour market entrants. For this chapter, the data from the German Socio-Economic Panel (GSOEP) are used and referred to. The chapter also studies people who began employment between 1985 and 1998, with focus on the risk of starting on a fixed-term contract and on the risk of experiencing a subsequent period of unemployment.Less

Labour policy developments in Italy in comparative perspective

Fabio Berton, Matteo Richiardi, and Stefano Sacchi

in The political economy of work security and flexibility: Italy in comparative perspective

This chapter outlines the evolution of labour flexibility policies in Italy, Germany, Spain and Japan. All four countries have introduced labour market reforms as a strategy to respond to high (or ... More

This chapter outlines the evolution of labour flexibility policies in Italy, Germany, Spain and Japan. All four countries have introduced labour market reforms as a strategy to respond to high (or what is perceived as high, for example, in Japan) unemployment rates and to accommodate productive necessities that could no longer be satisfied with existing instruments. In doing so, they generally sought to shelter the core workforce from regulatory changes, shifting the burden of functional adjustment on to mostly new entrants in the labour market.Less

Re-intermediating Investment Management

Ashby Monk, Rajiv Sharma, and Duncan L. Sinclair

in Reframing Finance: New Models of Long-Term Investment Management

Chapter 3 focuses on the re-intermediating aspect of the collaborative model, explaining the idea that institutional investors need to re-engage with their asset managers in order to obtain greater ... More

Chapter 3 focuses on the re-intermediating aspect of the collaborative model, explaining the idea that institutional investors need to re-engage with their asset managers in order to obtain greater alignment of interests. The chapter recognizes that asset managers can provide value to their investor clients under the right terms and conditions and seeks to understand what such a governance arrangement looks like. It draws inspiration from the sociology–informed relational contracting method, which emphasizes trust, mutual dependency, and cooperation over the long term as key norms of the contractual engagement. Relational contracting is thus proposed as an ideological form of governance between investors and investment managers, which is practically translated into more discrete mandates, greater responsibility for investors, greater transparency, and robust incentive structures. The chapter provides theoretical evidence for the importance of relational contacts and practical guidance for achieving them.Less

Introduction

Mindy Chen-Wishart and Stefan Vogenauer

in Contents of Contracts and Unfair Terms

This chapter sets the scene for Volume III of Studies in the Contract Laws of Asia. It describes the genesis and the main objectives of the series, ie to facilitate conversations between Asian ... More

This chapter sets the scene for Volume III of Studies in the Contract Laws of Asia. It describes the genesis and the main objectives of the series, ie to facilitate conversations between Asian jurisdictions and between them and ‘Western’ jurisdictions. It provides some basic information on the populations and the economic importance of the 13 Asian jurisdictions covered (China, Hong Kong, India, Indonesia, Japan, Korea, Malaysia, Myanmar, the Philippines, Singapore, Taiwan, Thailand, and Vietnam). Moreover, it comments on the methodology employed throughout the volume and reproduces the guidance that the editors provided to the various contributors in order to ensure that their chapters cover roughly the same ground. The last and longest part of this chapter contains an overview of the content of the further 22 chapters included in Volume III of the series.Less