Category Archives: Contract

Sarah Worthington, ‘The Commercial Triple Helix: Contract, Property and Unjust Enrichment’

Abstract This chapter revisits some of the enduring controversies affecting the interface between contract, property and unjust enrichment. Unless these controversies are settled satisfactorily, the framework for commercial law will be weak. Having trawled through the detail, four points are made to assist analysis in these areas: 1. Property questions must be answered before liability […]

Erik Encarnacion, ‘Contract as Commodified Promise’

Abstract Many scholars assume that lawmakers should design contract law with the goal of facilitating commercial promises. But the question of which promises count as commercial remains neglected. This Article argues that this question matters more than one might initially expect. Once we understand commerciality in terms of commodification – roughly, treating something as subject […]

Yonathan Arbel, ‘Adminization: Gatekeeping Consumer Contracts’

Abstract Large companies and debt collectors frequently file unmeritorious claims against consumers. Recent high-profile actions brought by the Consumer Financial Protection Bureau against JP Morgan, Citibank, and other large debt collectors illustrate the breadth and importance of this phenomenon. Due to the limited financial power of individuals, consumers often do not defend against such baseless […]

David Ramos Munoz, ‘Do Fundamental Rights Conflict with Private Law?’

Abstract The relationship of fundamental rights and private law is often filled with mistrust, which results in a framework where (1) the issue of horizontal effect acquires an oversized importance; (2) the relationship is described in terms of the conflict between fundamental rights and private rights; and (3) fundamental rights are seen as a constraint […]

Lim and Chan, ‘Problems with Wednesbury Unreasonableness in Contract Law: Lessons from Public Law’

Abstract This article identifies three key problems with the English courts’ current use of Wednesbury unreasonableness to control the exercise of discretion in contract law. First, there are misconceptions about the nature of Wednesbury review in contract law. Second, the intensity with which courts should apply Wednesbury unreasonableness is unclear. Finally, the contents of Wednesbury […]

Mark Movsesian, ‘Markets and Morals: The Limits of Doux Commerce’

Abstract In this essay for a symposium on Professor Nathan Oman’s new book, The Dignity of Commerce, I do three things. First, I describe what I take to be the central message of the book, namely, that markets promote liberal values of tolerance, pluralism, and cooperation among rival, even hostile groups. Second, I show how […]

Gabriel Jaccard, ‘Smart Contracts and the Role of Law’

Abstract This paper gives an overview on smart contracts and assess their legal relevance. The first part, explains the notion of smart contract and provides simple examples of it. In the second part, we propose a legal analysis of smart contract. First, we explore how smart contracts can be relevant in the eyes of the […]

Samuel Ernst, ‘Pluralism Applied: A Concordant Approach to Selecting Contract Rules’

Abstract Contract rules can be justified by utilitarian theories (such as efficiency theory), which are concerned with promoting rules that enhance societal wealth and utility. Contract rules can also be justified by rights-based theories (such as promissory and reliance theories), which are concerned with protecting the contractual freedom and interests of the individual parties to […]

Cynthia Estlund, ‘Rethinking Autocracy at Work’

“Professor Elizabeth Anderson’s outstanding Tanner Lectures, recently published as Private Government, aim to bring the problem of workplace governance back into the exalted domain of political theory and political discourse, where it resided a century ago. Highlighting the expansive power that employers exercise over employees at and even beyond the workplace, she asks: How is […]

Armour and Enriques, ‘The Promise and Perils of Crowdfunding: Between Corporate Finance and Consumer Contracts’

Abstract ‘Crowdfunding’ is a burgeoning phenomenon. Its still-evolving status is reflected in diversity of contracting practices: for example, ‘equity’ crowdfunders invest in shares, whereas ‘reward’ crowdfunders get advance units of product. These practices occupy a hinterland between existing regimes of securities law and consumer contract law. Consumer protection law in the UK (but not the […]