Areas Of Contract Law Research Articles

In Contract Law: Unpacking Undue Influence through a Judge’s Lens

This study explores how judges at the Malang District Court view “undue influence” (misbruik van omstandigheden) as a determinant of contractual incapacity in contract law and identifies the criteria they use. Employing an empirical approach with case analysis and sociological perspectives, primary data came from interviews, while secondary data, including court rulings and relevant materials, underwent descriptive and qualitative analysis. The research reveals that cases involving individuals who exploit situations from the beginning of an agreement with malicious intent, strategically using economic and psychological advantages to gain control, are central to the concept of undue influence. Surprisingly, the Malang District Court handles a limited number of such cases, as aggrieved parties often initiate criminal fraud proceedings before filing civil lawsuits citing undue influence. Some rulings categorized undue influence claims as unlawful acts or defaults. In deciding undue influence (misbruik van omstandigheden) cases, judges prioritize two key factors: the substantive content of the lawsuit, pivotal for the court's jurisdiction, and the level of due diligence exercised by parties, considering subject matter, witnesses, and relevant correspondence—all affecting the agreement's validity. Consistency in judicial decisions is recommended to provide legal certainty and predictability for parties involved. This research underscores the need for legal awareness, streamlined procedures, precautionary measures, and ongoing research in this area of contract law.

Contracts Law and its Modern Trends: The Ecuadorian Case

At the international level, in the area of Contract Law, this article begins with a critical review of the current regulatory scenario in Ecuador and its European counterpart. Then, the article aims to comparatively address the objectives, nature and scope of the UNIDROIT Principles, the PECL and the Pavia Draft. They constitute a modern lex mercatoria seeking to go beyond what are the national laws and systems and become the law of business. Above all, the PECL and the DCFR had a crucial indirect effect that influenced jurisprudence and national reforms. Finally, the article identifies the prevailing ius-privatist spirit in Europe as a difference, compared to a model like the Ecuadorian, which is committed to the constitutionalization of the private law (civil and commercial) and a strict delimitation of the principle of private autonomy.

Legal Ignorance in Belgian Private Law

Legal ignorance typically refers to a situation where one is ignorant of the existence of a certain legal prescript or is ignorant of the precise understanding of a prescript or its consequences. In Belgian law, there is no general provision dealing with legal ignorance or its effects. In principle, one cannot escape the application of law based on the mere fact that one does not know the law or its consequences. However, in specific situations Belgian law and case law deviate from this basic principle, provided that strict conditions are fulfilled. The authors of this article report on the application of the concept of legal ignorance in the areas of contract law, tort law and prescription. As for contract law, the article examines whether a mistake as to the law may qualify as an excusable error leading to the nullification of a contract. Although the Cour de Cassation applies a very strict interpretation and states that mere legal ignorance cannot be an excusable error, some lower courts seem to apply a more lenient interpretation. In tort law, the starting point remains that mere legal ignorance is not excusable. To escape liability despite the infringement of a specific rule, one will have to overcome the difficult task of proving that the mistake was ‘unavoidable’. Lastly, the general provision for prescription periods does not deal explicitly with the issue of legal ignorance. In principle it is not necessary that the person subject to prescription is aware of the fact that the prescription started to run. In specific situations, some statues and case law deviate from this principle.

Contractual Performance in COVID-19 Times: Does Anglo-French Legal History Repeat Itself?

The Severe Respiratory Syndrome Coronavirus 2 (COVID-19) pandemic has dealt a universal challenge to contractual performance, but legal systems have responded differently. In this article, we focus on two jurisdictions with distinct paths of development – England and France – to examine if they have drawn from their own legal history to craft solutions to this challenge and to consider if either has bettersuited tools to address it. Notably, the UK has refrained from intervening in the area of contract law, thus relying on long-standing common law doctrines and equitable remedies, while, in France, the government has intervened with a series of ordonnances providing contracting parties with new tools tackling difficulties of performance, which add to the existing arsenal in the Code civil. The article demonstrates that the responses to the COVID-19 challenge by England and France have historic roots and illustrate important legal cultural differences vis-à vis state intervention in the area of contract in trying times. Moreover, even though, at first glance, parties contracting under French law have more tools balancing freedom of contract and fairness, a closer look reveals that over protection or under protection may lead to the same outcome for contractual relationships on both sides of the Channel. Ultimately, in both countries, parties seem better off settling their disputes themselves, away from the courts.

More Contract Lore

Contract lore consists of “traditional beliefs” about contract law that judges, lawyers, and scholars applying and writing about contract law, employ so routinely and confidently that the principles demonstrate how we perceive contract law today. Previously, I presented three illustrations of contract lore: First, expectancy damages put the injured party in as good a position as if there were no breach. Second, the reasons for a breach, “whether willful, negligent, or unavoidable, are irrelevant to the rules of performance and remedies.” Third, contract formation and interpretation focus on the parties’ intentions. None of these principles are factually or historically even close to true and are nothing more than myths. For example, expectancy damages rarely if ever make the injured party whole. Important remedial rules, such as the obligation of injured parties to pay their lawyers win or lose, the bar to the recovery of prejudgment interest, the preclusion of unforeseeable and unquantifiable damages, and the high bar to recover emotional distress damages, means that injured parties usually recover well-short of their lost expectancy. When pressed, most people with knowledge about contract law would admit that contract lore is not law. Nevertheless, why do these people invoke these “traditional beliefs” even though they are, in reality, nothing more than myths? I reckoned that “contract lore represents contracts people’s aspirations—their strong preference for how contract law should operate if realities did not preclude it.” Further, people tend to seek consistency in their beliefs, which “leads them to believe things that are not true and to avoid conflicting information.” As such, contract lore represents an example of the psychological phenomenon of cognitive dissonance. In this symposium article, I delve deeper into the phenomenon of contract lore. I offer additional examples that focus on the contract lore of consent in the context of standard-form contracting, “intention of the parties” in the context of gaps in contracts, and the requirement of a “bargained-for exchange” in the context of promise enforcement. Based on these examples, I don’t abandon cognitive dissonance as one explanation of contract lore, but I offer additional explanations and show that context play an important role in explaining contract lore. My ultimate goal is to show how contract lore sheds light on possible areas of contract law in need of reform.

EU Contractual Protection of Creators: Blind Spots and Shortcomings

EU Contractual Protection of Creators: Blind Spots and Shortcomings

The Europeanization of private law: its progress and its significance for China

Ever since the Napoleonic codification of 1804, private law legislation has become a concomitant of the nation state. Although private law essentially lacks particular national characteristics, most civil codes have been enacted by national legislatures. This article gives an account of the efforts of the European Union (EU) to reduce the resulting divergences of the private law of its member states. For a better understanding, it explains the constitutional basis of such legislation in the Treaty on European Union (TEU) and the types of legislative acts available. So far, the EU legislation in this field is often fragmentary and inconsistent. While scholars have called for general principles for many years, the European Court of Justice (ECJ) has not responded to that call so far. Since 1980 scholarly initiatives have therefore taken the lead and prepared a basis for a general future legislation in the area of contract law. On this basis, the European Commission finally published a proposal in 2011 for an optional instrument on a Common European Sales Law (CESL), and this law is now under deliberation. This article explores the potential impact that this future instrument might have on Chinese legislation and on commercial relations between the EU and China.

Regulatory Competition through Choice of Contract Law and Choice of Forum in Europe: Theory and Evidence

Abstract: This article challenges the claim that there is regulatory competition in the areas of contract law and civil litigation. It is frequently assumed that lawmakers reform their contract laws and dispute resolution mechanisms with the purpose of attracting 'users', i.e., parties to cross-border contracts who choose the contract law or the courts of a given legal system. I shall discuss this assumption and its plausibility in the first part of this article. In the second part, I will test the assumption by presenting the available empirical evidence on the choices of contract law and forum that businesses in Europe actually make. For a long time, such data have been largely absent from the debate. Moreover, I assemble evidence of lawmakers competing for the production of the most attractive legal regimes in the areas of contract law and civil litigation. I conclude that meaningful regulatory competition in the areas concerned cannot be predicted with confidence; nor is there evidence of its existence. Résumé: Cet article questionne l'affirmation selon laquelle il existerait une concurrence normative en matière de droit des contrats et de contentieux civil. Il est généralement tenu pour acquis que les organes producteurs de droit réforment le droit des contrats et les mécanismes de résolution des conflits en ayant en vue de les render attractifs pour les 'utilisateurs de droit', et plus spécifiquement, d'attirer les parties aux contrats internationaux qui sont en position de choisir le droit applicable à l'acte ainsi que la juridiction compétente en cas de conflit. Cette hypothèse sera analysée et son caractère plausible étudié, dans la première partie de l'article. Dans la seconde partie, l'hypothèse sera mise à l'épreuve au regard des résultats des études empiriques récentes sur les choix de loi et de forum par les professionnels en Europe. Longtemps, ce type de donnés a fait défaut au débat. Au surplus, seront étudiés des indices relatifs à l'existence éventuelle d'une compétition entre législateurs pour produire les régimes légaux les plus attractifs en matière de droit des contrats et de contentieux civil. Il faudra conclure en reconnaissant que, d'une part, il est difficile de prédire avec certitude qu'une réelle concurrence normative pourrait marquer les domaines étudiés et que, d'autre part, il n'y a, pour l'heure, pas de preuve de son existence.

Der Vorschlag Einer Verordnung Über Ein Gemeinsames Europaeisches Kaufrecht (The Proposal of a Common European Sales Law)

The European Commission's Proposal for a Regulation on a Common European Sales Law (CESL), published in October 2011, aims for an optional instrument of European Contract Law. The objectives of the Commission are twofold, namely to reduce transaction costs for businesses operating in the internal market and to provide for a high level of consumer protection. The present paper calls into doubt whether the proposal will reach the goal of reducing transaction costs as the choice-of-law rules leading the way into the CESL are complicated and fragmented. There is the real possibility that transaction costs will rise rather than decrease if the proposed regulation enters the competition between legal systems. On the second count of consumer protection the proposal heavily relies on mandatory rules which, it is argued, is an inadequate mode of legislation in the area of contract law. The paper is written in German and formed the basis for a presentation to the Committee on Legal Affairs of the German parliament (Deutscher Bundestag) in its hearing on the proposed regulation in Berlin, November 21st, 2011.

Through the Legal Looking Glass: Exploring the Concept of Corporate Legal Strategy

51 * Antoine Masson is currently working at the European Court of Justice as a referendaire, managing the “Law, Management and Strategies” research program of the ESSEC European Center for Law and Economics and collaborating with the University of Luxembourg. He has been a part-time lecturer at Trinity College, Dublin and a researcher at HEC-Paris. He has edited two books on legal strategies including Legal Strategies: How Corporations Use Law to Improve Performance (Germany: 2010) with Mary J Shariff. He has published extensively on Law and Management, Business Law and European Law. The author wishes to thank Hugues Bouthinon-Dumas and Nocella Lauriane for their help. massona@essec.fr. ** Mary J Shariff is an Assistant Professor at the Faculty of Law, University of Manitoba and Associate of the Desautels Centre for Private Enterprise and the Law. She teaches in the areas of contract law, international business law, natural resources law and bioethics and the law and is currently publishing and conducting research in Legal Strategies as well as in the intersection of Science, Technology, the Environment and the Law. The assistance of Kevin Marechal de Carteret is gratefully acknowledged and was made possible by generous financial support from the Marcel A Desautels Centre for Private Enterprise and the Law, Winnipeg, Manitoba, Canada. shariff@cc.umanitoba.ca. Through the Legal Looking Glass: Exploring the Concept of Corporate Legal Strategy

China's Legal Response to the Global Financial Crisis: Increasing Certainty in Contractual Disputes to Boost Market Confidence

The recent global financial crisis has compelled China to make significant changes to its legal system, not least in the area of contract law. In 2009, China's Supreme People's Court issued a Judicial Interpretation and Guiding Opinion modifying the uniform contract law passed in 1999. These deal with issues such as the validity, performance and breach of contracts, and were issued in direct response to the economic downturn. This article focuses on the modifications the new Interpretation and Opinion have made to the governance of contractual relations in China, as well as considering what their impact will be for businesses operating in China. By addressing these issues, this article offers a clear overview of the current state of contract law in China and considers whether there will now be more certainty in the outcome of contractual disputes as a result of the recent changes and a consequent rise in market confidence.

The Edge of Ethics in iParadigms

In an attempt to stem a perceived rise in student plagiarism, educational institutions are increasingly turning to anti-plagiarism technologies. The use of these technological means to police student writings has been controversial, socially, politically, and legally. This article discusses the outcome of A.V. et al. v. iParadigms, to date the most important opinion on the legality of such technology's use. The author examines the case in detail and presents arguments against the technology's use, on the grounds that such use undermines educational policy by allowing the ethics of teachers to become a by-product of available technological means and by contributing to a detrimental framing of students as criminals. Some especially tony colleges, such as Harvard, do not subscribe to Turnitin or other plagiarism-detection software services but prefer to preach to their students about the evils of plagiarism. These schools are naive. [2] Let's be serious. [3] One can hardly spend a nanosecond within the walls of academia without hearing tell of the epidemic of student plagiarism. [4] While empirical evidence of an epidemic may remain wanting, it is clear that a collective perception of crisis has taken hold in educational circles. [5] A noteworthy reaction to this perception of escalating plagiarism has been the academic embrace of commercial anti-plagiarism systems. This article is an examination of a recent ruling, A.V. et al. v. iParadigms, [6] stemming from this embrace. In section I, I sketch the context for that legal controversy that foregrounds its entangled technological and social aspects. [7] Sections II-V comprise a discussion of the case's facts, and the case's rulings in the area of contract law and copyright law. A speculative exploration of the possible pitfalls of too quickly embracing the plagiarism epidemic mood along with the technological fixes subsequently touted as its solution constitute sections VI and VII. SECTION I: A TECHNOLOGICAL CONTEXT Even if only on the basis of the opinion's economical clarity, iParadigms contends for a place in the canon of teachable jurisprudence. In addition to its crystalline brevity and the clarity of its legal logic, the ruling presents its reader with an admirable map of the technological and social forces that are the field in which its legal questions take on their meaning and significance. But that map's merit has limits. And to more fully understand the field of forces at play, that map must be extended.

European Contract Law: Are No Oral Modification Clauses Not Worth the Paper They Are Written On?

Mephistopheles: But one thing still: in case of life or death, I pray Give me a written line or two . Faust: What, pedant! Something written do you ask of me? Was neither man nor word of man yet known to you?1 After initial hesitations, 2 the European Commission now seems determined to force the pace in European contract law harmonization. 3 It is still unclear whether the European Union is heading for non-binding model rules, a binding or non-binding toolbox for the EU legislator, a recommendation of a model law, an optional instrument as the so-called ‘28th system’, 4 an EU Directive on contract law, or – least likely of all – full harmonization by way of an EU Regulation on Contract Law or ‘[t]he creation of a full-fledged European Civil Code, replacing all national rules on contracts’. 5 It is, however, increasingly likely that the EU is going to take harmonizing action in some form in the area of contract law. The next step is the drafting of a Common Frame of Reference, the adoption of which was initially envisaged for 2009, was then postponed to 2010, and now is unlikely to be finalized before 2012. 6

An Introduction to the Academic Draft Common Frame of Reference

First of all, i would like to congratulate the Presidency on the council’s statement of position of 18 April giving the green light to the idea of a common Frame of Reference as a better lawmaking tool in the area of contract law.1 this decision and the Parliament’s resolution of December last year2 are immensely encouraging to those who have been working in this area – and they are no less so for being cautious and realistic and leaving open some room for manoeuvre. i have been asked to introduce the Academic Draft common Frame of Reference. i am very glad to do so. Its full name is Principles, Definitions and Model Rules of European Private Law: Draft common Frame of Reference but it can be called the DcFR for short. it is four

Secured Credit and the Internal Market: The Fundamental Freedoms and the EU's Mandate for Legislation

This paper discusses the competence of the European Community to provide measures with respect to security interests which are vested in movables. First, it is elaborated whether Article 95 EC provides the power to harmonize national rules concerning security vested in movables. Secondly, the question is raised whether Article 308 EC provides a power to create a European Security Interest. Both questions are answered affirmatively. Subsequently, these two issues are placed within the context of the Common Frame of Reference process, which the European Commission has started in the area of contract law. In this respect it should be noticed that the European Commission focuses mainly on 'pure' contract law rather than on security interests vested in movables. This is not likely to change in the near future.

ROGUES, SWINDLERS AND CHEATS: THE DEVELOPMENT OF MISTAKE OF IDENTITY IN ENGLISH CONTRACT LAW

THERE are few more vexed areas of contract law than that of a mistake as to the identity of a contracting party. The case law is difficult to reconcile. Judges and jurists disagree as to the effect of a mistake of identity upon the formation of a contract. This disagreement extends beyond discordance as to the operative principles to the very existence of the doctrine. That the issues are of current concern can be seen in the recent decision in Shogun Finance v. Hudson. This article examines how and why such a situation arose through an examination of the historical development of the doctrine. The thesis of this article is that the meaning of the early cases is obscured when they are viewed solely from a contractual perspective. The participants in these cases were also concerned with issues of criminal law and tort law. As these concerns disappeared from the law the meaning of the early cases was obscured and the cases have ceased to make sense. The article concludes with two sets of observations: first, what can be concluded, as a matter of legal history, from the development of this doctrine; secondly, how the modern law of mistake as to identity should regard these early cases.

"Seductive Company": Contract, Tort or Obligations in the South Pacific?

SEDUCTIVE COMPANY : CONTRACT, TORT OR OBLIGATIONS IN THE SOUTH PACIFIC? Sue Farran and Jennifer Corrin Care* INTRODUCTION In jurisdictions which have inherited the English common law, there increasingly appear to be areas of contract law which overlap with the law of torts; where clear distinction is more a matter of academic debate than practical application, and where it might well be asked, as long as a just solution is reached does it matter whether the solution is by way of tort or contract. This is particularly so in the case of liability for negligent advice or in- formation resulting in economic loss. Here, the relationship be- tween the parties might well be one of contract and often, but not always, in circumstances where one party is relying on the exper- tise or professional skill of the other. Implied into the contract, but generally not stipulated, is the idea that the expert or profes- sional will conduct themselves in accordance with the standards generally associated with that profession or expertise. Where the expected standard is not met and loss results, there is the ques- tion not so much of who is liable, but on what grounds should liability be imposed? Where the damage is physical, an action will lie in tort, even if there is no contract, for example, where a surgeon is not employed by the patient but by the State, or where a builder contracts with the previous but not current owner of the building. If, however, the loss or damage is not physical, but only financial, there is reluctance in the law of tort to recognise a claim. Recovery in contract may also be ruled out by the absence of privity or, in a seemingly diminishing number of cases, of con- Sue Farran is a Senior Lecturer at the Law School of the University of the South Pacific, Vanuatu. Jennifer Corrin Care is a Senior Lecturer at TC Beirne School of Law, University of Queensland, Brisbane, Australia and a Barrister and Solicitor of Fiji Islands and Solomon Islands.

The Legal Foundations of a Retail Transaction: Contract Law and the Uniform Commercial Code

This article examines the legal foundation of a retailer transaction. A ten-question test is presented to introduce students to some of the interesting coverage areas of contract law and the Uniform Commercial Code (UCC). After each mini-case, true/false question in the exam has been answered and discussed, the authors discuss their experience with this exercise in the classroom. The paper's main objective is to present an interesting way in which the legal implications of a typical marketing transaction can be presented in the classroom.

The Choice of the Aggrieved Party - An Analysis of the Remedies in the Principles of the European Contract Law

The article analyses the Principles of European Contract Law from the creditor's standpoint - examining his choice of remedies in cases of non-performance by the debtor. Three considerations are highlighted: 1. The interests of the parties, and especially those of the creditor, for whom different remedies may be more or less important depending on the nature of the contract. These interests are largely satisfied by the Principles. There are a large number of limitations on the creditor's right to specific performance, but he is protected by the existence of that right, the fact that the burden of proof of factors limiting specific performance is placed on the debtor and the fact that he can also claim damages for losses which are not economic in character. 2. The circumstances in which the remedy is sought (in terms of the actions of the parties and the order and timing of those actions). The treatment by the Principles of these considerations is subjected to some criticism by the author because it is necessary to search through the various remedies to identify the relationship between the remedy and the behaviour of the parties. She accepts that complete clarity may be impossible to achieve, but the result is that the Principles are not always clear as to the range of remedies that are available in certain situations. 3. The type of obligation concerned and the type of breach that occurs are also relevant to the creditor's choice, and various remedies may need to be activated in specific ways. Again there are some grounds to criticise the Principles but the solutions found are generally to be welcomed. The author concludes that on the whole the Commission on European Contract Law has performed a huge task and managed to create a system of remedies that is sympathetic to the parties' interests and effective. She hopes that the Principles will be called on by the EU when formulating new directives in the area of contract law.

Form and Substance in US, English, New Zealand and Japanese Law: A Framework for Better Comparisons of Developments in the law of Unfair Contracts

There was talk of change in the law of contract in the United States, England, New Zealand and Japan in the 1990s. Often this was linked to broader trends of internationalisation. This article builds on the "form-substance" framework proposed by Atiyah and Summers, focusing on the fine print doctrine, the duty of good faith, and the law of unconscionability and undue influence. It argues that developments in these areas of contract law, which control unfair contracts, tend to be consistent with the overall orientation of each national legal system. This suggests that counter-systemic developments in each legal system's contract law will be met by more resistance than expected. Further, those overall orientations are not necessarily convergent, and this is likely to affect the impact of international developments in contract law on each legal system.