Category Archives: Contract

Dagan and Heller, ‘Why Autonomy Must Be Contract’s Ultimate Value’

Abstract In ‘The Choice Theory of Contracts’, we develop a liberal theory of contract law. One core task of the book was to persuade advocates of economic analysis that they must situate their enterprise within our liberal framework. Autonomy, rightly understood, is the telos of contract. Oren Bar-Gill pushes back strongly in ‘Choice Theory and […]

Cathro and Connell, ‘New Variations on the Rule Against Penalties’

Abstract As a consequence of the rule against penalties, contractual clauses with a penal character are unenforceable. The rule has recently undergone significant revision in both the United Kingdom and Australia, following decisions by the highest courts in those jurisdictions. This article sets out and considers the options that those decisions put forward for the […]

Simon Connell, ‘Contract Law, Contracting and Instrumentalism’

Abstract This essay in an edited book, which the author was invited to contribute, discusses the relationship between contract law and the practice of contracting with reference to John Gava’s critique of John Smillie’s account of the purpose of contract law. Connell, Simon, Contract Law, Contracting and Instrumentalism (2016) in S Griffiths, M Henaghan and […]

Yonathan Arbel, ‘Book Review: Civil Justice Reconsidered: Toward a Less Costly, More Accessible Litigation System

Abstract A book review of Steven P Croley’s book Civil Justice Reconsidered: Toward a Less Costly, More Accessible, Litigation System (NYU Press, 2017). In this review, I evaluate Professor Croley’s engaging book and highlight the various contributions to the public discussion of tort reform and other critical issues affecting our system of civil justice. The […]

Anidjar, Katz and Zamir, ‘Enforced Performance in Common-Law Versus Civil Law Systems: An Empirical Study of a Legal Transformation’

Abstract Legal systems differ about the availability of specific performance as a remedy for breach of contract: While common-law systems deny specific performance in all but exceptional cases, civil-law systems generally award enforcement remedies subject to some exceptions. However, there is an ongoing debate about the extent to which the practices of litigants and courts […]

Heimer v Companion Life Insurance Co – Sixth Circuit Invokes Contra Proferentem as Default Rule for Resolving Ambiguous Contract Provisions’

“In Heimer v Companion Life Insurance Co, the Sixth Circuit purported to rule on the by-now venerable question of ‘whether a contract should mean what it says’. The panel majority answered this question in the affirmative by finding a disputed insurance policy provision unambiguous. And yet, perhaps to assuage any possible doubt, the majority also […]

Call for Papers: ‘Autonomy in Private Law: Past, Present, Future’: Private Law Junior Scholars Conference, Tel Aviv, 19-20 June 2019

“Autonomy has long stood as the central pillar of conventional scholarship in private law. Much of private law, as depicted in these accounts, is built around the ideal-typical vision of autonomous agents as the relevant legal subjects, and frequently, private law is also claimed to realize and enhance autonomy. The assumption of the existence and […]

Levmore and Fagan, ‘The End of Bargaining in the Digital Age’

Abstract Bargaining is a fundamental characteristic of many markets and legal disputes, but it can be a source of inefficiency. Buyers often waste resources by searching for information about past prices, where a seller already holds that information. A second – and novel – source of social loss is that some buyers will avoid otherwise […]

Mark Pawlowski, ‘Undue Influence: Towards A Unifying Concept Of Unconscionability?’

Abstract The article argues for an assimilation of the related doctrines of undue influence and unconscionable dealings under one common umbrella of unconscionability. The interrelationship between unconscionable bargains and undue influence under English law is considered in some detail, as well as developments in other Commonwealth jurisdictions, notably, in Canada, Australia and New Zealand. After […]

Philippa Collins, ‘The Inadequate Protection of Human Rights in Unfair Dismissal Law’

Abstract Workers in the private sector have limited legal options if they believe that, by terminating the working relationship, the employer has infringed their human rights. In most cases, they must rely on an existing cause of action, notably the right not to be unfairly dismissed contained in the Employment Rights Act 1996. The provisions […]