Category Archives: Contract

Call for Papers: The Future of the Commercial Contract in Scholarship and Law Reform: Institute of Advanced Legal Studies, 11 October 2019

“This conference follows up on research undertaken at IALS during the 2016-2018 period. It invites new participants to the project and new topics to be added. A special focus will be on law and technology, the role of artificial intelligence, so called smart contracts, blockchain and other forms of digital interaction and digitisation in commercial […]

Naveen Thomas, ‘How to Design and Conduct Negotiation Simulations in Contract Drafting Courses’

ABSTRACT In any law school course, the most common type of exercise used to teach negotiation skills is a simulated negotiation based on a hypothetical fact pattern. This type of activity is ubiquitous in classes that are dedicated to negotiation skills, but it can also be useful in contract drafting courses. This article focuses on […]

Eliezer Sanchez Lasaballett, ‘Conceptualizing harmonization: the case for contract law’

ABSTRACT Legal harmonization is a fundamental notion of comparative contract law that has been on the international and national agendas for at least six decades. There have been a number of endeavours seeking for similarity between legal rules from different jurisdictions; however, their achievements remain contested since there is no comprehensive understanding of the nature […]

Dominiak and Fegley, ‘Should Libertarians Reject the Title Transfer Theory of Contracts?’

ABSTRACT … In the present paper we argue that on the grounds of the title transfer theory of contracts typical debt contracts, as the one adumbrated above, would not be legally binding because they presuppose that a promise, not a property title transfer, is the source of contractual obligation. In turn the title transfer theory […]

‘Legal Theory Lexicon: The Reasonable Person’

“The notion of a ‘reasonable person’ usually makes its first appearance in the Torts course. The context, of course, is the tort of negligence, where the ‘reasonable person’ is used to define the standard of care that triggers liability for unintentional harms. But what makes a ‘reasonable person’ reasonable? The concept of the reasonable person […]

Emily Kadens, ‘Cheating Pays’

ABSTRACT Common private-ordering theories predict that merchants have an incentive to act honestly because if they do not, they will get a bad reputation and their future businesses will suffer. In these theories, cheating is cheating whether the cheat is big or small. But while reputa­tion-based private ordering may constrain the big cheat, it does […]

Jill Fraley, ‘Modern Waste Law and Residential Mortgages’

ABSTRACT … Using new research on the evolution of waste law, this Article traces the changes that allowed lenders – who at the common law had no standing – to bring waste actions and how the doctrine has evolved to make those actions more available and more lucrative for lenders. Drawing on that history, this […]

Frederick Schauer, ‘A Critical Examination of the Distinction between Interpretation and Construction’

ABSTRACT The distinction between interpretation and construction, with its roots in the law and theory of contracts, has become a central theme in contemporary debates about constitutional theory. According to the distinction, advanced and elaborated by Lawrence Solum, Keith Whittington and many others, interpretation is the process of locating the linguistic meaning of an authoritative […]

Witt, Martins and Price, ‘Contract’s Revenge: The Waiver Society and the Death of Tort’

ABSTRACT A generation ago observers confidently predicted the death of contract and the triumph of tort. But contract has risen from the dead. Contracts waiving tort rights have become ubiquitous in the American marketplace. We survey the history and doctrine of exculpatory clauses in a wide variety of consumer contracts. We find that mid-twentieth-century skepticism […]

‘The Waiver Society Project’

“Yesterday, I posted an article written by John Witt, Ryan Martins, and Shannon Price. They are also involved in a website called The Waiver Society Project. From the website: ‘The general aim of the Waiver Project is to communicate something about the ubiquity of waivers in our world and to promote better understanding of the […]