Monthly Archives: December, 2013

Nuno Manuel Pinto Oliveira, ‘Contract Law, Liability Rules, and Property Rules’

Abstract: Calabresi and Melamed’s concepts of property rules and liability rules apply to contractual entitlements. The structure of consumer’s contractual entitlements resulting from the consumer sales directive fits with the model of property rules. In keeping with such a model, whenever performance-oriented remedies are not available, consumers should be allowed to choose between expectation damages […]

Colin Marks, ‘Not What, but When Is an Offer: Rehabilitating the Rolling Contract’

Abstract: A number of courts have held that a contract is formed when deferred terms found inside the package are reviewed by the buyer and accepted by some act—usually use of the good. This “rolling” contract approach has been widely criticized by commentators as an abomination of contract law that ignores a true application of […]

Klass and Zeiler, ‘Against Endowment Theory: Experimental Economics and Legal Scholarship’

Abstract: Endowment theory holds the mere ownership of a thing causes people to assign greater value to it than they otherwise would. The theory entered legal scholarship in the early 1990s and quickly eclipsed other accounts of how ownership affects valuation. Today, one finds appeals to a generic “endowment effect” throughout the legal literature. Recent […]

John Gava, ‘How Should Judges Decide Commmercial Contract Cases?’

Abstract: It will be the argument of this paper that for a variety of reasons judges should not adopt contextually oriented styles of judging in the resolution of commercial contract disputes before the courts. How judges should decide commercial cases and, in particular, contract cases, has been at the centre of debate surrounding contract law […]

Pietro Sirena, ‘Towards a European Law of Unjustified Enrichment’

Abstract: Though historically recent, a European law of unjustified enrichment is already existing and embraces both contractual and extra-contractual restitution, which however are governed by different rules and shall not therefore lose their own specificity. In contractual restitution, the remedy is based on the general principle of unjustified enrichment (both in civil and in common […]

Liam Murphy, ‘The Practice of Promise and Contract’

Abstract: This chapter defends an instrumental justification of contract law. The reason to have contract law is to make possible socially beneficial transactions that otherwise would not occur. The chapter thus rejects corrective justice accounts of contract (whether grounded in promisees’ expectation or reliance interests) and the idea that the point of contract law is […]

Just published: Private Law: Key Encounters with Public Law (Barker and Jensen eds)

The relationship between private and public law has long been the focus of critical attention, but recent years have seen the growing influence upon private law of statutory intervention, public regulation, corporate globalisation and constitutional and international human rights norms. Such developments increasingly call into question the capacity of private law reasoning to operate in […]

Andreas Rahmatian, ‘A Fundamental Critique of the Law-and-Economics Analysis of Intellectual Property Rights’

Introduction: The economic analysis of law and legal institutions, or the law-and-economics movement, originally a distinct North American phenomenon that emerged in the 1960s, has become a widespread tool for a certain conceptualisation and understanding of legal problems. Prominent representatives of the law-and-economics approach especially regard intellectual property as a ‘natural field for economic analysis […]

Mark Leeming, ‘Theories and Principles Underlying the Development of the Common Law: The Statutory Elephant in the Room’

Introduction: Law cannot be treated purely as an intellectual system, a game to be played by scholars whose aim is to produce a perfectly harmonious structure of rules. It is something which operates at a practical level in society, and has to be understood as such. The truth stated by Professor Ibbetson is recognised in […]

Warren Swain, ‘Unjust Enrichment and the Role of Legal History in England and Australia’

Introduction: “Private law evolves slowly over decades or even centuries. Without the benefit of hindsight it is not always obvious that any change has taken place at all. Yet this observation does not inevitably hold true. The emergence of unjust enrichment in the final decades of the twentieth century is a clear counter-example. Little more […]