The role states in modern international of the heads of contract law Carol Tisum

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Contract and property law are traditionally seen as rather distinct parts of a legal system. However, there is growing awareness that contract and property are not so separate at all. We can observe more and more fuzzy boundaries. Four examples (case studies) are discussed: reclaiming money, the non-accessory mortgage, protection of mortgagors, private re-registration of mortgages in the US: Mortgage Electronic Registration Systems (MERS). The fuzzy boundaries make us realise that the distinction between contract and property (in the classical, 19th century, model of private law: the absence or presence of the binding force of an arrangement on third parties) is becoming less of a binary and more of a gradual nature. It seems that a growing category of intermediary rights is developing, rights between contract and property law, which may very well prove to have become no longer a dogmatic anomaly, but a necessary supplement to the traditional distinction between contract and property law. If this analysis is correct, it might imply that we have to rethink our categorisation of private law into a law of contract and a law of property, as we had to rethink the categorisation of private law into a law of contract and a law of tort after Gilmore’s famous statement that contract law was dead, or at least drowning in a sea of tort. It is not argued that contract law, again, is dead, but that contract law may have begun a new life as part of a broader category of arrangements regarding objects with burdening effect vis-a-vis third parties, where classical contract is one end of the spectrum (no third party effect) and property is the other end of the spectrum (full third party effect).

Previous articleNext article No AccessDiscussionRights, Liberties, and Expectations: A Reply to Sterba and MarkieEric MackEric Mack Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by Ethics Volume 89, Number 3Apr., 1979 Article DOIhttps://doi.org/10.1086/292118 Views: 1Total views on this site Copyright 1979 University of ChicagoPDF download Crossref reports no articles citing this article.

The article questions the common assumption according to which the law of contracts must be applied differently to employment contracts. Although employment contracts are different from commercial contracts, the body of law designated as ‘labour law’ provides a plethora of legal instruments to accommodate these differences. However, the law of contracts is only one component of labour law. The fact that employment contracts are paradigmatic relational contracts as well as contracts in which there is an assumed asymmetry among the bargaining parties, can be addressed by the law of contracts while adhering to its generic premises. At the descriptive level, the article draws on Israeli law to demonstrate that the law of contracts is generally applied uniformly in both the employment and commercial contexts, despite judicial rhetoric to the contrary. At the normative level, it is argued that courts should avoid a sui-generis development of contract law. Deviating from the general law of contract should therefore be done by relying on the other components of labour law, namely statutory standards and collective bargaining.

The Contracts (General Part) Law, 1973, is the fundamental statute in Israeli contract law, and will in the future serve as the basis for the codification of Israel civil law. The Law was enacted following a decade of meticulous preparatory work by a committee headed by Professor Tedeschi. Prof. Tedeschi was the leading intellectual force in this committee; his influence is apparent in the approaches, principles and concepts of the Law, as well as in its particular provisions. Prof. Tedeschi also devoted a part of his prolific writings to the realm of contracts law. This article, dealing with only two sections of the wide-ranging Contracts (General Part) Law, is dedicated with admiration to the father of Israeli modern contract law.

The paper argues that the concept of trust is inevitably latent in every contractual relationship, and is best understood as a comprehensive theory and justification of contract law as both trust and contracts (more than any other legal action) are aiming toward the same universal goal of cooperation, risk-taking, and fulfillment of reasonable expectations. Contract law, per se and through its good faith doctrine, could then function as an expressive, coercive, and thus corrective legal tool, serving to symbolize, build, and internalize a culture of trust wherever it has failed to develop. Accordingly, while viewing the corporation as a nexus of contracts and as a voluntary organization based on cooperation and consent, trust can thus function as an axis that best fits corporate law, and also serves to justify it. The paper is organized as follows. Part I, briefly considers the essential role of trust. Although trust is discussed in this paper as a crucial concept in the corporate arena, some interdisciplinary insights about the axiomatic necessity of trust are cited in order to substantiate its systematic and universal role. The major theoretical claim of the article is then been outlined, namely, that the concept of trust serves as a comprehensive theory of contract law. Since the claim is that contract law is justified and also serves as the main legal bridge toward substantiating the social norm of trust, reference is also been made to the recent literature discussing the interaction between social norms and the law. Part II, illustrates the doctrinal ways by which the Israeli supreme Court integrates between the concept of trust, contract law and corporate law and substantiate the social norm of trust in the corporate context. Israeli precedent resorts rather extensively to the good faith doctrine of contract law in corporate contractual settings, explicitly justifying this recourse by reference to the trust principle, and stressing the implicit obligation of the corporation and its organs to fulfill the reasonable expectations of all corporate actors. Part III, points out some preliminary thoughts concerning specific issues in corporate and securities law that seem best suited for a research project based on the trust theory of contract and corporate law outlined here, such as issues of comparative corporate law, the search for an efficient corporate governance structure, the scope of mandatory rules in corporate law, the justification and content of the disclosure philosophy in securities regulation and legal methods for the protection of mixed investors within a corporate law model of shareholders supremacy. Part IV concludes with a discussion about the potential role of the corporation in generating an environment of universal trust, which is crucially important in the global economy.

The economic loss doctrine is a judicially created rule that determines whether contract or tort law applies when a defective product causes damage. The doctrine’s starting premise is that contract law governs if the defective product causes economic loss and tort law governs when the defective product causes property damage. A common refrain is that the doctrine was created to prevent contract law from drowning in a sea of tort. However, as the rule has developed, courts have continued to expand contract coverage at the expense of tort coverage. First, when the defective product damages only itself, the courts concluded that such property damage should be resolved under contract law, not tort law. Next, when the defective product damages the system of which it was a component part, the courts concluded that such property damage should also be resolved under contract law, not tort law. Recently, another rule has begun to receive judicial acceptance that further expands the coverage of contract law at the expense of tort law. The rule is called the “disappointed expectations” test or the “reasonably foreseeable” rule. It provides that property damage that was reasonably foreseeable at the time of contracting is recoverable only under contract law, not tort law. The purpose of this Article is to examine the disappointed expectations rule and determine whether it is a positive addition to the legal landscape of the economic loss doctrine.

The article discusses the relationship between consumer protection and contract law in the European Community context, and its bearing on the national legal systems of the Member States. It takes as a starting point the Green Paper on EU Consumer Protection of October 2001, an official (even if not legally binding) document of the European Commission, where it is stated that differences in national laws may create obstacles to the smooth working of the internal market, particularly in cross-trade between consumers and businesses, and therefore legal intervention at the EC level might be necessary in the form of either a framework directive on commercial practices coupled with specific directives (so-called mixed approach), or of a series of specific directives tackling individual problems. The Green Paper is then discussed in the light of several other official documents of the EC institutions and of some important inititives related to consumer protection and contract law (such as the Principles of European Contract Law, a kind of “Restatement” of European contract law), in order to assess the current state of the issue and possible future trends of development. The possibility of Community regulation in this field poses several problematic elements. The principle of enumerated competences and that of subsidiarity, which limit Community action, force it to frame the planned regulatory intervention in terms of obstacles to the working of the internal market created by different legal environments in the national legal systems; at the same time, most documents indirectly recognize that legal diversity is not in itself a sufficient reason for regulatory intervention, but only if this situation in fact hinders cross-border trade, an issue where there is strong disagreement. Even more problematic is the possibility of codifying at the Community level the whole of contract law, or, as it has been also proposed, the whole of private patrimonial law: not only is the issue of the existence of a sufficient legal basis for regulatory action very dubious, but what seems crucial, and yet almost completely neglected in the documents analysed, is the way that general contract law (or private patrimonial law) should be linked to the existing acquis communautaire in the field of consumer protection. Two possible strategies can be envisaged: either the protective rules of consumer law are kept as a separate body of law conceived as a limited exception to the general principles of freedom of contract, or the entire structure of contract law must be reviewed in order to take into consideration the existence of contracts with asymmetric powers of the parties, of which consumer contracts are one important (but not the only) example. Both alternatives have advantages and drawbacks, but at the moment it is almost impossible to forsee which of them, if any, will be experimented at the Community level, since the debate on it is still lacking at the official level. Yet, it seems that this is a crucial choice if EC law is to succeed in complementing national laws in this area. Finally, another controversial issue is how this body of Community law should relate to national laws: it could continue with the well-known minimum harmonisation technique, which allows states to retain more protective legislation, or, as it has been suggested, it could shift to a maximum harmonisation standard, which would severely impair flexibility for member States to adapt EC rules to national particular social and economic goals and needs.

… The typical case in which impossibility or some related doctrine is invoked is one where, by reason of an unforeseen or at least unprovided-for event, performance by one of the parties of his obligations under the contract has become so much more costly than he foresaw at the time the contract was made as to be uneconomical (that is, the costs of performance would be greater than the benefits). The performance promised may have been delivery of a particular cargo by a specified delivery date – but the ship is trapped in the Suez Canal because of a war between Israel and Egypt. Or it may have been a piano recital by Gina Bachauer – and she dies between the signing of the contract and the date of the recital. The law could in each case treat the failure to perform as a breach of contract, thereby in effect assigning to the promisor the risk that war, or death, would prevent performance (or render it uneconomical). Alternatively, invoking impossibility or some related notion, the law could treat the failure to perform as excusable and discharge the contract, thereby in effect assigning the risk to the promisee. From the standpoint of economics – and disregarding, but only momentarily, administrative costs – discharge should be allowed where the promisee is the superior risk bearer; if the promisor is the superior risk bearer, nonperformance should be treated as a breach of contract. “Superior risk bearer” is to be understood here as the party that is the more efficient bearer of the particular risk in question, in the particular circumstances of the transaction.

This is a chapter for the forthcoming book, Contracting and Contract Law in the Age of Artificial Intelligence, edited by Martin Ebers, Cristina Poncibo, and Mimi Zou, to be published by Hart Publishing. The aim of this chapter is to offer a general theory of contract law to account for the inclusion of artificial intelligence in contract practices. Artificial intelligence brings out that what makes contract law a distinctive form of legal obligation is shared intentionality. I refer to this insight as the shared intentionality thesis. Shared intentionality is the psychological capacity of one agent to share and pursue a joint goal with another agent. It is an attribute of human thought empowering human planning and the ability to share agency with others. Shared intentionality leads to a focus on objective intent to enter contractual relations in Anglo-American contract law as the primary concept in understanding what is distinctive about contractual obligation. The doctrine of objective intent in contract law operates as a Turing test for determining whether a contract has been formed. The chapter explains that it does not matter which “mind” is thought to produce this intent – human or artificial. The issue is attribution of the right sort of mental states by one contract party to another. Daniel Dennett’s notion of the intentional stance, as well as philosophical work on mindreading, can assist in developing this argument. The chapter focuses on understanding how folk psychology can lead humans to the sort of recognition that is needed to engage with increasing levels of artificial intelligence in contracting. What gives artificial intelligence intent is not some internal workings of its programming but us – the ascription of intentionality to artificial intelligence by humans. But the intentional stance on its own does not offer an adequate explanation of a special kind of intent that is needed for contract formation. It does not inform us about the sort of “we” intentionality or the ability to engage in future directed intentions as elements of stable plans of action in the form of contracts. Shared intentionality, a concept developed by philosopher Michael Bratman, evolutionary anthropologist Michael Tomasello and others, is the core of contractual obligation. It does not matter whether this shared intentionality is the result of human or artificial agency. Of course, artificial intelligence on its own does not yet have the sort of agency required for shared intentionality but it likely will in the non-too-distant future.

Corruption contracts are, throughout the democratic world, illegal and considered immoral. Their participants thus cannot use standard procedures to find a second party, to negotiate the content of the contract, to check if it performs what was promised, and to enforce the promises. This increases the risks associated with the contract. Illegality or immorality of the contract makes both parties more vulnerable – each party can threaten to reveal the contract and denounce the second party. Connecting a corruption contract with a previously established legal contract is usually seen as the best way to reduce risks and to reinforce the corruption contract. Owing to legal contacts and contracts, potential parties interested in corruption know where they should seek a counterparty and what to offer. At the same time, the corruption contract is tied to legal contracts, and failure to fulfil conditions of the corruption contract may put such legal contract at risk, therefore there is a higher probability that both parties to the corruption contract would fulfil what was promised and that there will be no extortion by any of the parties to demand additional fulfilment after the end of the corruption contract or that the corruption contract will not be disclosed. This paper presents the opposite approach in which a corruption contract is established as the first and it creates the base for further often legal but immoral contracts. All contracts lead to the mutually advantageous affinity of all its participants who often become members of corruption networks. The article presents the model when a blackmailed or dependent person must participate in corruption contracts, otherwise, it faces serious problems. But sooner or later, participation will begin to bring him benefits, so he becomes dependent on the network, although initially, he had moral inhibitions to participate in its activities. The subjects looking a counterparty of the corruption contract thus often create the environment of dependency and blackmailing and when people that are obliged to corruption lose their scruples and they see corruption as the common behaviour. Our model comes from real corruption networks in the Czech Republic. Some of them are briefly analysed. Theory of corruption must pay higher attention to all factors contributing to the spread of corruption behaviour, including mutual dependence and extortion Keywords: blackmailing, corruption, corruption networks, corruption risks, mutual dependency

This chapter discusses Japanese law of obligations and contracts. Topics covered include general rules of law and obligations, the law of contract, and the management of another person's unjust affairs and unjust enrichment.

This chapter on the autonomy of the common law of the contract of employment addresses the relationship between the general principles of contract law and the more specific rules pertaining to the employment contract. The chapter considers how the employment contract applies and modifies general principles and, in turn, acts as a catalyst for reform in the law of contract as a whole. The chapter discusses the construction of an employment contract, the importance of cross-fertilization, the concept of pluralism within contract law, and the notion of good faith. The view is taken that a proper understanding of the relationship between the general principles and specific rules can only be gained through consideration of the way in which the law of the employment contract also interacts with the law of other nominate contracts.

In his influential paper, 'Are There Any Natural Rights?', H. L. A. Hart offers an account of the appearance of contractual rights (i.e., rights to the fulfillment of promises or contracts) which invokes the existence of a certain natural right, viz., the equal right of all men to be free.' At least one of Hart's purposes in providing this account is to establish a link between contractual and natural rights such that the existence of the former can be appealed to as evidence for the existence of the latter. Unfortunately, the specific account which Hart offers in terms of the equal right of all men to freedom is not satisfactory for this purpose. About B's contractual right against A, Hart says, "in the case of promises and consents or authorizations" B's "claim to interfere with another's [i.e., A's] freedom is justified because he [A] has, in the exercise of his equal right to be free, freely chosen to create this claim."2 About this passage, W. K. Frankena remarks,

The perpetual script of a smart contract, that executes an agreement machine-to-machine without prejudice, guarantees performance of ‘contractual terms’ enabling the exchange or transaction of cryptoassets and other forms of property. Yet, smart contracts as recognisable or valid legal instruments within the boundaries of contract or property law remain uncertain and contentious. Contrary to perceptions of contractual streamlining and efficiency, understanding the uncertainty smart contracts produce lies in the technology's failure to meet many of the fundamental principles of contract law and theory concerning, for example, breach of promise and remedy for breach. Smart contracts appear to reduce contracting to a form and standard well below that developed by contract law and theory over many centuries in both civil and common law jurisdictions. Including elements of the law of restitution, this article's remedial analysis will examine smart contracts considering ‘traditional’ contract law to understand and, where possible, test the legal legitimacy of this post-human technology, and explore the potential of smart contracts to supplement or, in time, supersede traditional contract law.