Category Archives: Contract

Just Published: Misleading Silence (Bant and Paterson eds)

This collection brings together a team of outstanding scholars from across the common law world to explore the treatment of misleading silence in private law doctrine and theory. Whereas previous studies have been contractual in focus, here the topic is explored from across the full spectrum of private law. Its approach encompasses equitable and common […]

Jeffrey Hewlett, ‘Unconscionability as a Judicial Means for Curing the Healthcare Crisis’

INTRODUCTION …. This Note will explore courts’ reluctance to utilize unconscionability in medical billing contexts, despite its otherwise seemingly natural fit. It is this Note’s primary contention that unconscionability should apply toward medical billing of uninsured patients. Furthermore, it is this Note’s contention that the ‘uniqueness of the healthcare market’ has caused a rift between […]

Pietro Ortolani, ‘Smart Contracts, ODR and the New Landscape of the Dispute Resolution Market’

ABSTRACT Like any complex phenomenon, dispute resolution can be observed through different lenses. We can look at it from a public law perspective, scrutinizing the nature and the limits of the power that adjudicators exert, be them State judges, or private arbitrators. Conversely, we can analyze it from the vantage of private law, focusing on […]

Spencer Williams, ‘Contracts as Systems’

ABSTRACT A contract is much more complex than its individual terms would suggest. Yet contract scholars have traditionally taken a reductionist approach to the study of contracts. According to ‘contractual reductionism’, a contract can be understood through each of its constituent terms. Recent scholarship, however, has begun to challenge contractual reductionism’s term-by-term view of contracts. […]

May Fong Cheong, ‘Contractual Fairness: Statutory Innovation and Statutory Interpretation’

ABSTRACT This chapter considers statutory innovation and statutory interpretation in two pieces of Australian legislation: the unfair contract terms law in the Australian Consumer Law, and unjust contracts under the Contracts Review Act 1980 (NSW). These provisions raise the challenge to interpret statutes which seek to give content to indeterminate value of fairness and justice. […]

‘New article on “Transnational Contracts and their Performance during the COVID-19 Crisis: Reflections from India”’

“The outbreak of the COVID-19 or the coronavirus disease 2019 has severely impacted the performance of several contracts across the globe. In some situations, the outbreak may render the performance of contracts impossible as a result of governmental restrictions in the form of national lockdowns to curb its spread. Likewise, the pandemic may adversely impact […]

Stephen Neville, ‘Eavesmining: A Critical Audit of the Amazon Echo and Alexa Conditions of Use’

ABSTRACT The emergence of smart speakers and voice-activated personal assistants (VAPAs) calls for updated scrutiny and theorization of auditory surveillance. This paper introduces the neologism and concept of ‘eavesmining’ (eavesdropping + data mining) to characterize a mode of surveillance that operates on the edge of acoustic space and digital infrastructure. In contributing to a sonic […]

Bental, Deffains and Demougin, ‘Interpreting contracts: the purposive approach and non-comprehensive incentive contracts’

ABSTRACT Real world contracts often contain incentive clauses that fail to fully specify conditions triggering payments, giving rise to legal disputes. When complete contract generate Pareto efficient allocations the L&E literature advocates that courts should fill in the missing clauses. This logic does not directly extend to environments with moral hazard, where complete contracts result […]

‘Consumers and businesses in digital markets – An unequal relationship?’

“On 15 October, the Swedish Consumer Agency, its Scientific Council and Maastricht University (in particular the Law and Tech Lab) hosted the webinar ‘Consumers and businesses in digital markets – An unequal relationship?’, focused on bringing together the perspectives of national consumer authorities, consumer organizations, businesses and supranational law-makers on the challenges and opportunities of […]

Dave de Ruysscher, ‘Conceptualizing Lex Mercatoria: Malynes, Schmitthoff and Goldman compared’

ABSTRACT This article compares the doctrines on transnational commercial customs in Malynes’ Lex Mercatoria (1622) and in the writings of Clive M Schmitthoff and Berthold Goldman. It is argued that core problems in conceptualizations of lex mercatoria are present in all these texts. Malynes unsuccessfully attempted to reconcile a new approach of considering law merchant […]