Category Archives: Interpretation
Nils Jansen, ‘The Oracles of Codification: Informal Authority in Statutory Interpretation’
ABSTRACT The paper first reconstructs the transformations during the 19th and 20th centuries, by which the codified legal systems of continental Europe were complemented with increasingly thick layers of case law. On this basis, I secondly analyse the nature of precedent in codified legal systems, in which only legislation is formally acknowledged as a source […]
‘Hell is other people[‘s property rights]?’
The High Court judgment in a fiercely-fought easements case has just appeared. Hambling v Wakerly [2023] EWHC 343 (Ch) is an (unsuccessful) appeal from a decision in Norwich County Court, by HHJ Walden-Smith, and concerns land in Suffolk. (And, to the great relief of those of us still struggling through the whopping proprietary estoppel judgments […]
Meixian Song, ‘Causation or correlation: the chimera in section 11 of the Insurance Act 2015’
ABSTRACT Prior to the Insurance Act 2015, an insurer could refuse payment by relying on terms unrelated to the manner in which the loss occurred, or with the assured’s default. Section 11 of the Insurance Act 2015 reverses that and requires ‘the punishment to fit the crime’ by introducing a ‘could have increased the risk’ […]
Rui Ataíde, ‘Models Available to Parties to Regulate and Distribute Contractual Risk – Hardship Clauses in Particular’
ABSTRACT As a consequence of the binding character of contracts, performance must be rendered, despite the added burden it may impose on the debtor. However, in order to guard against the possibility of a change of circumstances causing difficultas praestandi, the parties may stipulate hardship clauses, normally in long-term contracts. In the event of hardship, […]
Scott, Choi and Gulati, ‘Commercial Boilerplate: A Review and Research Agenda’
ABSTRACT Boilerplate contracts have long fascinated legal scholars. But the focus has largely been on consumer contracts, with the debate centered on the question of whether ‘take it or leave it’ mass produced forms imposed on consumers by large corporations should be treated as contracts or as a problem in regulation. By contrast, commercial boilerplate […]
Badawi, de Fontenay and Nyarko, ‘The Value of M&A Drafting’
ABSTRACT This article examines how drafters of M&A agreements value individual clauses, using the relative degree of tailoring of different clauses under time pressure as a proxy. Empirical work on the content of M&A agreements faces a number of methodological challenges. We address two of them in this paper. The first is the problem of […]
Spencer Williams, ‘Contractual Complexity’
ABSTRACT Lawyers, judges, scholars, and clients all agree on one thing about contracts: they are complex. But what does this actually mean? What is contractual complexity and where does it come from? Despite widespread agreement that contracts are complex, the literature on contracts has yet to effectively define contractual complexity. Furthermore, the literature lacks a […]
Lisang Nyathi, ‘A Comparative Analysis of Contract Law Interpretation Approaches in English and French Law: A Focus on Business-to-Business (B2B) and Business-to-Consumer (B2C) Transactions’
ABSTRACT The great divide between business and consumer transaction rules is relatively a recent phenomenon, especially in the field of contract law. Although at present, the Business-to-Business (B2B) and Business-to-Consumer (B2C) distinction does not completely eradicate the conventional civil-commercial dichotomy, it indeed represents a new categorisation that significantly shapes rules on contracts, particularly their interpretation. […]
Ben Fernandez, ‘Transactional Drafting: Introduction to Contract Drafting and Transactional Practice’
ABSTRACT Transactional Drafting: Introduction to Contract Drafting and Transactional Practice contains a condensed presentation of all of the topics typically covered in an upper-level law school class on contract drafting. The book covers drafting from scratch including writing in plain English (not using legalese), avoiding ambiguity, and drafting covenants, rights and prohibitions consistently (using ‘will’ […]
Proshanto Mukherjee, ‘Salvage Agreement and Contract Salvage: Risk Dynamics in Salvage Law’
INTRODUCTION Shipping and seafaring are interdependent but as a combined phenomenon has, since time immemorial, been considered a dangerous and risky occupation. If shipping is a risky venture as it doubtless is, then salvage, famously described as an ‘endeavour so heroic that it is unrivalled in fiction’, is fraught with even greater risk. This chapter […]