Contemporary Contract Research Articles

Critical Review of Changes from Classical to Contemporary Contracts in Sharia Economic Transactions: Fiqh Perspective

Critical Review of Changes from Classical to Contemporary Contracts in Sharia Economic Transactions: Fiqh Perspective

Centring anti-oppressive justice: Re-envisioning dentistry's social contract.

We re-envision dentistry's social contract and elaborate on the idea that it is not neutral and free from such things as racism and white supremacy and can act as a tool of oppression. We critique social contract theory through examination of classical and contemporary contract theorists. More specifically, our analysis draws from the work of Charles W. Mills, a philosopher of race and liberalism, as well as the theoretical and praxis framework of intersectionality. Social contract theory supports hierarchies and inequities that may be used to sustain unfair and unjust differences in oral health between social groups. When dentistry's social contract becomes a tool of oppression, its practice does not promote health equity but reinforces damaging social norms. Dentistry must embrace an anti-oppression framing of equity and elevate the principle of justice to one of liberation and not just fairness. In doing so, the profession can better understand itself, act more equitably and empower practitioners to advocate for justice in health and healthcare in its fullest sense. Anti-oppressive justice supports health not as merely an obligation but as a human duty.

Selling loyalty and its Relationship to Legitimate Intentions - an Analytical Study-


 
 
 
 ABSTRACT
 
 Fulfillment sale is one among the contemporary contracts that require a study and clarification in terms of the legal ruling for these sorts of contracts, because of its spread among people, and to satisfy their needs, because it is a reasonable contract for both parties, and therefore the interest is achieved for them.
 Therefore, the principle within the sale must be binding and final, without rescission, if the contract is valid with its pillars, conditions and place, because it will have its legal effects since it results in the transfer of the ownership of the thing sold to the customer fully.
 As for a fulfillment sale, it is an accept which the vendor keeps for himself and has the proper to recover the sold item during a particular period reciprocally for refunding the first price and therefore the expenses incurred within the sale, and therefore the expenses of necessary or beneficial repairs apart from luxury.
 This contract has spread among the people as an alternate to usurious loans, whereby the vendor gets the cash without abandoning his money through the definitive sale, and therefore the buyer benefits from his money surplus to his needs without falling into usury through the utilization of the sale in fulfillment. Therefore, the need for the study of jurisprudence and in a comprehensive way was necessary, for the position of the tolerant Islamic law of it.
 The fulfillment sale aims to realize a double goal represented in documenting the debt that the vendor paid, so it is considered because the legitimate answer for the two parties to the contract and does not transfer the ownership of the sale to the customer, but rather owns the benefit, and thus it is one among the contracts of in-kind guarantee like a mortgage.
 
 
 

The Maze of Contemporary Contract Theory and a Way Out

Abstract Contemporary contract theories fail to escape their bondage to 19th century liberal philosophers. Some are based on utility or preference satisfaction, but they disregard justice. Others try to extract conclusions for general concepts such as liberty or autonomy, but they cannot do so without first smuggling their conclusions in the definitions of these concepts. These problems can be resolved by looking in a different direction: to the Aristotelian idea of contract as voluntary commutive justice on which contract theory was grounded before the 19th century. In the Aristotelian tradition, a contract of exchange was defined in terms of its purpose: to enable each party to obtain what he valued more in return for what he valued less without enriching the other party at his own expense. It united a concern for concept of a contract, the purposes of the parties, and the justice of their transaction rather than splitting them apart.

The Misconceived Doctrine of Causa and the Incoherence of Contemporary Contract Law

The Misconceived Doctrine of Causa and the Incoherence of Contemporary Contract Law

Contracts scholarship beyond Materialisierung

AbstractThis comment aims to show how Klaus Eller's paper on ‘The Political Economy of Tenancy Contract Law’1 raises the stakes of private law scholarship and contributes to the larger project of remodeling legal institutions in a progressive direction. The comment starts by contextualising the rapid spread of the Law and Political Economy (LPE) movement; illustrates through examples the generative impact of LPE on contemporary contracts scholarship; and highlights two strands of Eller’s original contribution to such literature: a welcome reflection on the value and limits of Materialisierung, and a radical widening of the private law inquiry to include institutional dimensions of legal reform. The point of fostering such new directions is not to ditch the very logic of private law and its endogenous mechanisms of justice, which are still essential to progressive legal work. What is no longer tenable is to keep seeking socially oriented solutions exclusively within the private law arsenal of possibilities, even when it has become obvious that only a synergic approach can produce accurate diagnoses of – and perhaps cures for – the structural predicaments of the market economy.

The Maze of Contemporary Contract Theory and a Way Out

The Maze of Contemporary Contract Theory and a Way Out

Twenty‐five years of Living Under Contract: Contract farming and agrarian change in the developing world

AbstractThe expansion of contract farming schemes through regions of the developing world in the era of the globalization of agriculture raises questions that are central to the study of agrarian political economy. Contract farming has extended the footprint of commodity production and integrated land and labour not otherwise captured in forms of direct production and marketing. 25 years after the publication of Living Under Contract: Contract Farming and Agrarian Transformation in Sub‐Saharan Africa, a foundational collection edited by Peter Little and Michael Watts, it is necessary to take stock of the most prominent developments in the practice of contract farming and in the political economy literature studying it. The ultimate contribution of Living Under Contract was framing contract farming as expressing the unevenness of power relations in agriculture and grounding it in specific political, historical and social contexts that were not examined in the mainstream accounts. This introduction to the special issue revisits the questions that have remained relevant or re‐emerged in the political economy literature on contract farming; it raises new questions that reflect contemporary developments and it explains how the papers in this collection contribute to the expansion of the theoretical and empirical horizons of the research on contemporary contract farming in low and middle‐income countries.

Recoverability of Damages for Non-pecuniary Losses Deriving from Breach of Contract

Abstract This is the first article that identifies contracts whose breach could cause non-pecuniary losses. It argues that in all cases where the outcome of the promised performance leads to something other than an enhancement of the promisee’s financial standing, the breach will cause him non-pecuniary losses. This proposition provides greater consistency in the law of contract damages. It provides a powerful argument against the existing notion of partial recovery of non-pecuniary losses and replaces it with a more principled and comprehensive approach that is more closely aligned with the general conceptual framework of contemporary contract law. If the principles identified in the present article are applied, all damages, including those for non-pecuniary losses, will be recoverable when the promisee’s performance interest is not satisfied.

Making Heritage. A Case Study on the Impact of Contract Archaeology on Museum Collecting in Sweden

Since taking off as an industry in Sweden in the 1980s, contract archaeology has changed not only the role of field archaeologists but also that of museums and the formation of collections. This paper discusses some of the effects of the commercialization of archaeological services through a case study of past and present collection practices. Data records are compared from three different archaeological investigations at the site Nya Lödöse (1473-1621) in Gothenburg. Each excavation represents a particular era in archaeological practice. The data are used to compare and analyse collecting practices within contemporary contract archaeology. Separately, a survey among contract archaeology units examines the implementation of legislative guidelines and day-to-day practices and suggests several causes for anomalies in the selection and discarding of finds in the case study. Combined, the findings of the case study and the survey results, suggest that contract archaeology leaves a specific imprint on collections in archaeological museums, impacting their compilation, and therefore influencing future research as well as the experience of the public.

Por uma teoria ética do contrato

Ancorado metodologicamente em algumas das possíveis intersecções que põe em contato a semiótica com a filologia, o artigo propõe o repensar dos contornos semânticos do contrato, tendo por premissa a fusão da eticidade à juridicidade na significação normativa do retrocitado negócio jurídico.

Signing on the dotted line: the lived experience of book contracts in contemporary Australian small-press publishing

ABSTRACT The publishing contract is the central legal feature of any publishing professional's life, whether creator, literary agent, or publisher. And with small press becoming an ever more important part of the Australian publishing scene, the contracts landscape has diversified and become more complex. There's a wealth of information on what you should and shouldn't do, and what the perfect contract looks like. But what's it like in reality, beyond the clause and sub-clause? For though it's an important legal document, the contract also represents an intense lived experience for all those who are a party to it, especially in the small-press sector. This article, based on interviews with a range of creators (authors and illustrators), literary agents, small-press publishers and industry body representatives, presents an illuminating snapshot of the contemporary contract experience in the Australian small-press sector. Not intended as a formal analysis of the contracts landscape but rather as an intimate insight into the individual lived experience of contemporary Australian contracts, whether that be for creators or publishers, the article addresses questions covering the contemporary challenges and opportunities of ‘signing on the dotted line’.

Aplicabilidad de la inteligencia artificial y la tecnología blockchain en el derecho contractual privado

Este artículo considera aspectos esenciales acerca de la aplicabilidad de la inteligencia artificial y la tecnología blockchain en los contratos contemporáneos, a partir de las posibilidades del sistema jurídico para recibir estos desarrollos informáticos, y de la definición de sus principales problemas, evidenciando a la vez su implementación práctica y perspectivas.

Juridical Status of So-called Smart Contracts against the Background of the Polish Legal Framework

Among substantial advancements challenging contemporary contract law special attention is given to autonomous, cryptographic solutions based on decentralised infrastructure provided by blockchain technology, intended to execute transactions automatically, designated as smart contracts. The need for comprehensive research on legal implications of practical implementation of this technological innovation is triggered particularly by the prognostications declaring it a valid alternative to hitherto contract law framework that is expected to be ultimately replaced by algorithmic mechanisms underpinning smart contracts.A relevant assessment of the impact smart contracts are presumed to have on the contract law domain requires a thorough analysis of their juridical status. The specificity of the category of smart contracts raises doubts whether they comply with the definition criteria inherent to contract law terminology. Additionally, it is of material importance to determine the function smart contracts can perform in the sphere of contractual practice and to confront it with the role and axiology of contract law.The article aims at analysing the peculiarities of smart contracts from the perspective of the Polish private law system with account being also taken of current development tendencies concerning the concept of contract.

Contemporary issues of form and substance: an Islamic law perspective

Purpose This paper aims to analyse the concept of form over substance and introduces the term substance gap to the literature. The substance gap is defined as the difference between the way a concept is expressed and its intended result. Besides, the study investigates the issue from both classical and contemporary viewpoints. Design/methodology/approach The methodology adopted in this paper is descriptive research. Findings This paper has depicted the substance gap in contemporary contracts and found that form is equally important as substance in Islamic finance contracts. This paper offers a fresh outlook on form and substance to highlight the importance of the issue and its significance. The findings of the study will help researchers address the issue at its roots and help them to bridge the gap between the form and substance of Islamic finance contracts. Originality/value This paper investigates the substance gap in contemporary contracts that exists between the fiqh rules and conditions of an Islamic contract, and their development and construction. Further, the gap could also be attributed to the pressure to cope with a complicated modern finance environment.

When AI meets PC: exploring the implications of workplace social robots and a human-robot psychological contract

ABSTRACTThe psychological contract refers to the implicit and subjective beliefs regarding a reciprocal exchange agreement, predominantly examined between employees and employers. While contemporary contract research is investigating a wider range of exchanges employees may hold, such as with team members and clients, it remains silent on a rapidly emerging form of workplace relationship: employees’ increasing engagement with technically, socially, and emotionally sophisticated forms of artificially intelligent (AI) technologies. In this paper we examine social robots (also termed humanoid robots) as likely future psychological contract partners for human employees, given these entities transform notions of workplace technology from being a tool to being an active partner. We first overview the increasing role of robots in the workplace, particularly through the advent of sociable AI, and synthesize the literature on human–robot interaction. We then develop an account of a human-social robot psychological contract and zoom in on the implications of this exchange for the enactment of reciprocity. Given the future-focused nature of our work we utilize a thought experiment, a commonly used form of conceptual and mental model reasoning, to expand on our theorizing. We then outline potential implications of human-social robot psychological contracts and offer a range of pathways for future research.

The Methodological Commitments of Contemporary Contract Theory

Autonomy and economic theories of contract seem to provide incompatible accounts of contract law. In this Chapter, I argue that what appear to be first-order disagreements over particular contract doctrines are really implicit second-order disagreements reflecting the divergent methodological commitments of autonomy and economic theories. I argue that autonomy theories accord priority to the normative project of justifying existing contract doctrine, treat contract law as consisting in the plain meaning of doctrine, require contract theory to explain the distinctive character of contract law, and take the ex post perspective in adjudication. In contrast, economic theories accord priority to the positive project of explaining existing contract theory, treat contract law as consisting in the outcomes of cases, strive to explain away, rather than explain, the distinctiveness of contract law, and take the ex ante perspective in adjudication. I demonstrate how the apparent disagreements between autonomy contract theories, such as Charles Fried's and Peter Benson's theories, and economic theories, such as Charles Goetz and Robert Scott's contract theory, reflect these opposing methodological commitments, rather than direct disagreements over particular contract doctrines. I also demonstrate that these theories' opposing perspectives in adjudication do not, as Richard Craswell has famously argued, necessarily disable all autonomy theories from addressing the problem of contractual gaps. I conclude that genuine progress on the first-order questions of contract law can be made only by first identifying and then adjudicating the methodological disagreements between different kinds of contract theories.

From Langdell to Law and Economics: Two Conceptions of Stare Decisis in Contract Law and Theory

In his classic monograph, The Death of Contract, Grant Gilmore argued that Christopher Columbus Langdell, Oliver Wendell Holmes, and Samuel Williston trumped up the legal credentials for their classical bargain theory of contract law. Gilmore's analysis has been subjected to extensive criticism, but its specific, sustained, and fundamental charge that the bargain theory was based on a fraudulent misrepresentation of precedential authority has never been questioned. In this Essay, I argue that Gilmore's case against the classical theorists rests on the suppressed premise that the precedential authority of cases resides in the express judicial reasoning used to decide them. In contrast, I argue that the classical theorists implicitly presuppose that the precedential authority of cases consists in the best theory that explains their outcomes, even if that theory is inconsistent with the case's express judicial reasoning. The classical view of precedential authority completely defuses Gilmore's charge of fraud. In Gilmore's view, merely demonstrating the inconsistency between the proposition for which the classical theorists cited a case and the express reasoning in that case suffices as proof of misrepresentation. But in the classical theorists' view, the express reasoning in a case is simply a theory of its precedential authority, which, like any theory, can be wrong. Thus, the classical theorists simply reject Gilmore's claim that a case cannot properly be cited for a proposition inconsistent with its express reasoning. The real dispute, then, between Gilmore and the classical theorists is over the nature of precedential authority and not the content of contract law. Having reframed the classic death-of-contract debate, I then trace these competing conceptions of precedential authority through the major schools of contemporary contract theory. I argue that a contract theory's embrace of one view instead of the other can be explained by the relative priority it accords to each of the two components in a conception of adjudicative legitimacy. A conception of adjudicative legitimacy consists in a theory of what it means for a decision to be based on law and a theory of what is required for law to be justified. I explain why theories according priority to the former tend to subscribe to the precedents-as-outcomes view, while theories according priority to the latter tend to favor the express reasoning view. The Essay concludes by arguing that the economic analysis of contract law subscribes to the precedents-as-outcomes view and therefore is the contemporary jurisprudential successor to the late nineteenth-century classical theorists.

Liability in Polish law for infringement of the pre-contractual obligation to inform

In contemporary contract and consumer law, obligations to inform are an example of instruments (protective ones) which imposes on business entities a duty to make a statement of knowledge (a representation), the content of which is determined by regulations and the purpose of which is to aid the consumer in taking a well-informed, rational decision. Appropriate regulations referring to liability for failing to carry out this obligation to inform aim to maintain optimal trust between the contracting parties and, as a result, lead to a balance in the parties’ position, at the same time upholding the principle of the freedom of contract. In accordance with the fundamental assumption in European consumer law, one’s liability towards a consumer should meet the criteria of both efficiency and proportionality, which means that one should not strictly consider such liability purely formally, i.e., as maintaining an economic balance between the parties. The sanction the company shall incur is to serve the actual satisfaction of the interests of the consumer, and not only to make a profit. Additionally, the sanctions for neglecting the obligation to inform are expected to encourage companies to comply with them. Neglecting this obligation to inform in the pre-contractual phase may take the form of not providing information which is required and explicitly defined by law or providing incomplete information. A large amount of detail in determining a business’s responsibility is presumedto guarantee the consumer knowledge of his/her rights and to enable him/her to evaluate the risks resulting from entering into a particular transaction. One must not, however, ignore the fact that providing excessive, thus illegible, information must be treated equally to non-disclosure of such information, which may result in infringement of the aforementioned regulations. Neglecting the obligation to inform may also arise in such a case where the consumer is not provided with a particular piece of information, despite the lack of a definite legal basis in this regard – such as a detailed regulation contained in an act – but such a duty would result from a general loyalty duty between the contracting parties. In the beginning, it should be noted that the liability for an infringement of the pre-contractual obligation to inform is characterised by system heterogeneity. In particular, it refers to the distinct consumer protection regime. It is very often the case that depending on the contractor’s status (professional or nonprofessional) the legal consequences of failing to inform or improperly informing are framed in different ways. One must bear in mind the difference between solely the failure to inform or to improperly carry out the pre-contractual obligation to inform (pursued within pre-contractual liability, fundamentally according to an ex delicto regime) and the consequences arising from the content of the delivered information, i.e., the guarantee of definite elements in the legal relationship of an obligatory nature (assigned to the classic liability in an ex contractu regime). The subject of civil liability for the infringement of duties to inform can be analysed from two perspectives: firstly, from an economic point of view, i.e., whether for the aggrieved party and for the market at large it would be more favourable for the infringement of the duty to inform to be pursued within an ex contractu or ex delicto regime, and secondly, from the perspective of the theory of law, whether for the system of contract law it would be better for this liability to be pursued within an ex contractu or ex delicto regime. In response to the second question, the position of academics is that the liability for the violation of trust due to failing to properly inform the consumer should be pursued in an ex delicto system in order to maintain the internal cohesion of contract law.

Henry Maine’s “Modern Law”: From Status to Contract and Back Again?†

In this Article, I conduct a long overdue assessment of Henry Maine’s “from Status to Contract” thesis in light of two essentially modern phenomena: contract standardization and relational contracting. Drawing on comparative legal history, classical sociological and anthropological literature, contemporary contract law theory, and recent works in the field of (behavioral) law and economics, I discuss the claim that modern private law is witnessing a reverse movement “from Contract to Status.” I show that this claim is historically inaccurate and conceptually simplistic in that it attributes shades of meaning to status that Maine never contemplated. I dedicate the remainder of the Article to exploring why—in the face of clear countervailing evidence—modern private law scholars continue to engage in Mainean “status”-speak. For this purpose, I tease out several interesting parallels between status as part of Maine’s theory and “status” as part of modern private law discourse. I firstly suggest that scholars mirror Maine’s thesis with their argument that interpersonal rights and obligations frequently result from naturally occurring societal processes that the law normatively reflects; conversely, that said rights and obligations are not necessarily the result of private-autonomous agreements between freestanding individuals. While this argument strikes me as plausible, the conceptual problems that transplanting Maine’s categories into contemporary private law discourse entails call for additional justification. I therefore, secondly suggest that it is the directional appeal of Maine’s linear or absolutist view that has led modern private law scholars to engage in Mainean “status”-speak. In order to assess the defensibility of this claim, I consider whether the “from Status to Contract and back again” thesis has any merit. Are we witnessing a reverse movement from the mostly private-autonomous creation of contractual rights and obligations to the heteronomous imposition of such rights and obligations on the part of society or the state? To answer this question, I examine a variety of conceptual forces struggling for dominance in modern private law. Two complementary tensions present themselves as relevant to my discussion: the tension between freedom of contract and constitutional paternalism, and the tension between perfect contracting solutions and second-best alternatives. I go on to show that “status”-like elements—i.e., elements that play on the rhetoric and directionality rather than the substance of Maine’s thesis—and contractual elements interact to mediate both tensions. Linear (or absolutist) and dialectical (or “pendulum swing”) theories of socio-legal evolution consequently fall short. Mainean “status”-speak is equally unable to account for the conceptual interaction that my discussion brings to light. To clarify any such interaction between “status”-like and contractual elements, I introduce, explain, and to some extent defend, two hybrid types—contract-status and status-contract. These hybrid types, I argue, go some way toward capturing current tendencies in modern private law. Inconsistencies, however, remain even if we reconstruct modern private law along the lines of contract-status and status-contract. Hence, I call for an update of modern private law’s terminological toolbox. To this end, it is imperative to draw on Maine’s very own methodological postulates. Contemporary scholars intent on saying anything of interest about modern private law would thus be well-advised to emulate Maine’s approach of combining empirical inquiry into economy and society with categories and concepts from the realm of legal theory—all the while freeing themselves from the overbearing influence of his original, loaded categories. In light of these exhortations, I look at one final answer to the question of why modern jurists continue to engage in Mainean “status”-speak. Might increasing references to Maine’s conceptual categories be evidence of a rediscovery of the value of macro-historical approaches for engaging critically with (private) law as a fundamental social institution? I contend that employing such macro-historical approaches is indeed necessary if modern jurists are to take seriously their duties as members of the legal profession, as participants in a broader intellectual and academic discourse, and as citizens of their respective societies.