Category Archives: Contract

Dagan and Heller, ‘The Choice Theory of Contracts (Introduction)’

Abstract: This concise landmark in law and jurisprudence offers the first coherent, liberal account of contract law. The Choice Theory of Contracts answers the field’s most pressing questions: What is the ‘freedom’ in ‘freedom of contract’? What core values animate contract law and how do those values interrelate? How must the state act when it […]

Jonathan Rohr, ‘Freedom of Contract and the Publicly Traded Uncorporation’

Abstract: Over the past decade, individual investors have poured hundreds of billions of dollars into publicly traded companies that have opted-out of traditional fiduciary duties. These publicly traded ‘uncorporations’ are organized as limited partnerships or limited liability companies, and many are governed by operating agreements that eliminate the fiduciary duties of managers and controlling equityholders. […]

‘Digital Single Market: Key points of civil law and civil procedure’, EBS Law School Wiesbaden, Germany, 22-23 June 2017 (conference language: German)

On May 6 2015, the European Commission presented its Digital Single Market Strategy. Its aim is to further develop the ‘Digital Agenda’ as a part of the overall strategy ‘Europe 2020’, which was adopted in June 2010 by the European Council. Thereby, the European Union intends to create a special digital single market in order […]

Call for Papers: The Future of the Commercial Contract in Scholarship and Law Reform – The interface between public international law and substantive contract law – IALS, London, 20 October 2017

Recent years have seen new European EU and academic proposals and legislation in regard of contract law. Examples are CESL, PECL and the DCFR but also the UK Consumer Rights Act 2015. These are either based on a universal notion of contract or deal predominantly with consumer contracts. Is there therefore a need to focus […]

Kate Tokeley, ‘When Not All Sellers Are Traders: Re-Evaluating the Scope of Consumer Protection Legislation in the Modern Marketplace’

Abstract: Consumer protection statutes in both Australia and New Zealand impose obligations on people who are in trade. Courts have consistently interpreted the ‘in trade’ limitation as excluding private transactions. In New Zealand, a statutory provision operative since 2014 requires all sellers ‘in trade’ who transact over the internet to make it clear to consumers […]

Jonathan Sumption, ‘A Question of Taste: The Supreme Court and the Interpretation of Contracts’

“Judges are fond of speculating about the motives and practices of businessmen in drafting contracts. It is a luxurious occupation. The rules of admissibility protect them from the uncomfortable experience of being confronted by actual facts. So, I propose to open my remarks this evening with a case study. On 6 February 1663, Samuel Pepys […]

‘“Coke-Upon-Littleton of the Fist”: Law, Custom, and Complications’

Robert Deal, The Law of the Whale Hunt: Dispute Resolution, Property Law, and American Whalers, 1780-1880 (2016). Robert Deal is a historian at Marshall University. His book is a nuanced account of the nineteenth-century British and American whaling industry and how it was misunderstood by contemporary lawyers and judges and continues to be misunderstood by […]

Cieplak and Leefatt, ‘“Smart Contracts”: A Smart Way to Automate Performance’

Introduction: “The freedom to contract is one of the oldest and most basic tenets of the American legal system. Subject to limited judicial and statutory exceptions, parties have been and are generally afforded carte blanche in determining the terms of a binding agreement and how those terms are memorialized. The recent emergence of “smart contracts,” […]

Katharina Schmidt, ‘Henry Maine’s “Modern Law”: From Status to Contract and Back Again?’

Abstract: In this Article, I conduct a long overdue assessment of Henry Maine’s ‘from Status to Contract’ thesis in light of two essentially modern phenomena: contract standardization and relational contracting. Drawing on comparative legal history, classical sociological and anthropological literature, contemporary contract law theory, and recent works in the field of (behavioral) law and economics, […]

‘Literal or Contextual? What is the Correct Approach to Contractual Interpretation?’

“Over the last twenty years or so, the approach of the English courts to contractual interpretation has moved between a strict literal approach and a more purposive approach. From recent decisions, the courts seemed to be trending back towards the literal approach (as in the Supreme Court decision of Arnold v Britton), moving away from […]