Category Archives: Contract

George Pasas, ‘No Oral Modification Clauses: An Australian Response to MWB Business Exchange Centres v Rock Advertising [2018] 2 WLR 1603′

ABSTRACT The strict enforcement of No Oral Modification clauses offers considerable commercial benefit. It also simultaneously conflicts with the fundamental common law principle of party autonomy. In 2018, the UK Supreme Court appeared to resolve that conflict, and heralded a new era wherein such clauses are given their proper effect. This note contends that that […]

David Winterton, ‘Claims for the Value of the Lost Contractual Performance’

ABSTRACT It is often said that contractual damages awards compensate the promisee for loss caused by breach. Statements like this are indeterminate because they leave unspecified whether such awards aim merely to make good some of the eventual deterioration in the promisee’s balance sheet position attributable to breach or instead redress the immediate loss of […]

Peter Quon, ‘Case Comment: Heller v Uber Technologies Inc

ABSTRACT In Heller v Uber Technologies Inc, the Ontario Court of Appeal held that the arbitration clause contained in the agreement between Uber and its drivers was invalid on two separate grounds. First, the clause amounted to an illegal contracting out of the Employment Standards Act. Second, the Court held that the clause was unconscionable. […]

Pietro Sirena, ‘The New Design of the French Law of Contract and Obligations: An Italian View’

ABSTRACT The reform passed in 2016 has deeply affected the structure of Book III of the Code Napoléon and re-founded the whole law of contract and obligations within the French legal system. The article seeks to give an account of the major changes occurred in basic concepts and terminology and to compare them to other […]

Schwartz and Markovits, ‘Function and Form in Contract Law’

ABSTRACT  We concisely state the essence of a functionalist theory of contract and the essence of a formalist theory of contract. We then compare the two theory families intuitively to suggest that, though they start in different places and their theoretical statements differ, the two theory families are more similar in application than is commonly […]

Liam Harris, ‘Understanding public policy limits to the enforceability of forum selection clauses after Douez v Facebook

ABSTRACT This article explores the nature of public policy limits to the enforcement of forum selection clauses, recently considered by the Supreme Court of Canada in Douez v Facebook. The public policy factors relied on by the plurality of the Court, inequality of bargaining power and the quasi-constitutional nature of the right at issue, possess […]

‘Intransparency of transparency case law? CJEU in C-38/17 GT v HS

“Last Wednesday the Court of Justice delivered a judgment in case C-38/17 GT v HS. On the face of it, the case seems like just another dispute concerning a credit agreement with potentially intransparent terms, specifically terms defining the applicable exchange rate for the loan denominated in foreign currency. On a closer look, a more […]

Michael Connolly, ‘Lee v Ashers Baking and its Ramifications for Employment Law’

INTRODUCTION … This highly publicised case on a bakery’s refusal to supply a cake iced with the words ‘Support Gay Marriage’ concerned discrimination on the grounds of political opinion and sexual orientation, and with it the bakery’s rights to free expression and religion. The case arose in the provision of goods, facilities and services (‘services’), […]

‘In Code(r) We Trust? Rethinking “Trustless” Smart Contracts’

“Trust is an integral aspect of all human relationships. Trust facilitates social cooperation and coordination. Contractual relationships are no exception. Non-legal mechanisms such as reputation and societal constraints may induce parties to perform their end of the bargain. However, in the event of non-performance, a promisee can rely on the ‘system’ of contract law with […]

Zheng Sophia Tang, ‘Consumer Contracts and the Internet in EU Private International Law’

ABSTRACT Although the Internet has brought challenges to the European jurisdiction and choice of law rules in consumer contracts, the challenges are not fundamental. The Internet challenge has been considered seriously by the legislators and guidance has been provided to help courts in the Member States in their practice. The current European conflict of laws […]