Category Archives: Contract

Sabine Tsuruda, ‘Contract, Power, and the Value of Donative Promises’

Abstract: Under the donative promise principle, an unrelied-upon promise to make a gift is unenforceable in contract. Commentators worry that enforcement would taint donative relationships by obscuring the promisor’s motive, leaving it unclear whether the gift was ultimately given out of, for example, friendship, or from fear of legal sanctions. This article argues that courts […]

Brian Bix, ‘Consent and Contracts’

Abstract: Consent – in one form or another – is at the core of the modern understanding of contract law. This Chapter shows how the nature of consent involved in contractual transactions is distinctively different from the consent involved in other sorts of events and transactions. The text also focuses issues of consent are in […]

Julian Nyarko, ‘Forum Shopping on the Market for Contracts: When Corporations Arbitrate’

Abstract: It is a widely held assumption that sophisticated parties prefer arbitration over litigation. Theory suggests that the preference for arbitration is even more pronounced in cross-border relationships due to the existence of a fundamental distrust of a foreign nations’ courts. However, reliable empirical evidence to support these assertions is scarce. Based on almost half […]

Beuve and Chever, ‘Quality of Outsourced Services, Opportunism and Contract Design’

Abstract: This paper estimates the impact of contract design on the enforceability of quality in outsourced public contracts. Using panel data from 102 cleaning contracts, our results suggest that quality enforcement depends highly on the ex ante contracting process. Such findings are consistent with recent theoretical contributions which consider that the verifiability of agents’ actions […]

Natasha Affolder, ‘Transnational Carbon Contracting: Why Law’s Invisibility Matters’

Abstract: Contract lawyers are well aware that it is in the boilerplate, in the creation of contractual norms, forms and defaults, that power gets divided and that winners and losers are made. This analysis applies to contractual governance just as it applies to the individual contract setting. This chapter draws on the example of forest […]

Charles Calleros, ‘US Unconscionability and Article 1171 of the New French Civil Code: Achieving Balance in Statutory Regulation and Judicial Intervention’

Abstract: In 2016, France adopted the first comprehensive revision of the French Law of Obligations since it appeared in the Napoleonic Code in 1804. New article 1171 of the Code authorizes judges to strike out auxiliary terms in an adhesion contract that create a significant imbalance in the rights and obligations, inviting a comparison with […]

Just Published: Nicholas McBride, Key Ideas in Contract Law and Peter Cane, Key Ideas in Tort Law

Nicholas McBride, Key Ideas in Contract Law This book introduces the reader to a number of ideas and issues that underlie the English law of contract – an area of law that is often regarded as forbiddingly dry and technical but which is here made easy to understand and full of interest. Taking as its […]

Liyang Hou, ‘Superior Bargaining Power: The Good, the Bad and the Ugly’

Abstract: Superior bargaining power demonstrates a domain where practice precedes theory. Although there have been legal practice on superior bargaining power to some extent across the globe for more than eight decades, debates have never rested on whether and how superior bargaining power should be regulated. In view of such a gap, this article for […]

Jacques Du Plessis, ‘Rethinking Notification in the Law of Contract’

Abstract: The South African law of contract provides that notification could take place in a variety of contexts. At times, it is crucial to determine when exactly notification is effected, and a range of possibilities present themselves. They include the moment when a party first sends or dispatches a notice (for example, when a letter […]

Kal Leung, ‘The Penalty Rule: A Modern Interpretation’

Abstract: This paper focuses on the common law doctrine of the penalty rule and the recent Supreme Court decision in Cavendish Square Holding v Makdessi and ParkingEye v Beavis. The state of the penalty rule prior to the judgment was unsatisfactory and criticized by both commentators and practitioners alike. Its indiscriminate application and unclear criteria […]