Monthly Archives: August, 2013

Nicole Kornet, ‘The Interpretation and Fairness of Standardized Terms: Certainty and Predictability Under the CESL and the CISG Compared’

Abstract: The vast majority of cross-border commercial sales transactions are concluded on the basis of standardized contracts. When assessing the competitive advantage of various regulatory instruments such as the new proposal for a Common European Sales Law (CESL) and the UN Convention on the International Sale of Goods (CISG), the nature and purpose of such […]

Mark Gergen, ‘Negligent Misrepresentation as Contract’

Abstract: This Article challenges the prevailing view in the United States, and everywhere else in the common law world, which classifies the claim of negligent misrepresentation as a tort. I argue negligent misrepresentation is best understood as a contractual claim akin to promissory estoppel, with the gist of both claims being invited reliance. The prevailing […]

Donald Kochan, ‘The Property Platform in Anglo-American Law And The Primacy of the Property Concept’

Abstract: This Article proposes that the property concept, when reduced to its basic principles, is a foundational element and a useful lens for evaluating and understanding the whole of Anglo-American private law even though the discrete disciplines — property, tort, and contract — have their own separate and distinct existence. Kochan, Donald J. (2013) “The […]

Sjef Van Erp, ‘Can European Property Law Be Codified? Towards the Development of Property Notions’

Abstract: In this contribution an overview is given of, what might be called, the ‘matrix’ of European property law. This matrix (the “classical model” of property law) consists of two layers. The first layer encompasses the leading principles and ground rules of property law. The second layer comprises the notions of subjects, objects and rights. […]

Robin Bradley Kar, ‘The Challenge of Boilerplate’

Abstract: Although Margaret Jane Radin is perhaps best known for her work in property theory, she has recently been focusing her formidable intellect on questions of contract. Boilerplate reflects her first book length treatment of these topics, and there is much to like about this book. This review focuses on one contribution that the book […]

Seth Davis, ‘Presidential Government and the Law of Property’

Abstract: Usually we think of property as a right made exclusively, or nearly so, by state courts and legislatures. The Executive Branch may regulate property, but it does not shape property law, or so our usual story goes. That conventional story is error. This Article introduces presidential government as a property lawmaker. Descriptively, it supplies […]

Shiyuan Han, ‘Principles Of Asian Contract Law: An Endeavor Of Regional Harmonization Of Contract Law In East Asia’

Introduction: Following the development of the globalized economy, it was inevitable that relevant private law rules would be harmonized and unified. This kind of harmonization and unification is both a global and a regional endeavor. In Asia (especially in East Asia) there is a private initiative by scholars trying to harmonize rules of contract law, […]

Feminist critiques of the public/private dichotomy: Godden’s ‘Tort Law, Human Rights and Rape: Beyond the Enforcement of Criminal Justice’

“This post is by Linda Roland Danil, who is one of our PhD associates. The post responds to Nikki Godden’s paper from our second workshop, which you can listen to here. ‘One of the things that The Public Life of Private Law seminar series has provoked is a reflection of the varied feminist critiques of […]

Charles Calleros, ‘Cause, Consideration, Promissory Estoppel, and Promises Under Deed’

Abstract: The common law theory of promissory estoppel offers a possible avenue for closing the gap between the civil law concept of cause and the common law doctrine of consideration. The civil law concept of cause supports the enforcement of gratuitous promises, or promises for which there is no consideration. The common law doctrine of […]

Helge Dedek, ‘Not Merely Facts: Trade Usages in German Contract Law’

Abstract: How do trade usages – as factual practices – transition from is to ought, from fact to norm? In the hierarchy of governing rules in contract law, the position occupied by trade usages is ambiguous: they can theoretically be regarded as deriving authority from incorporation into a contract or, conversely, as freestanding legal norms. […]