Contemporary Contract Research Articles

A Partnership Agreement as a Form of Organizing and Performing Joint Activities. Problems of the Theory and Practice

The article presents the main theoretical and practical problems of a partnership agreement as a form of organizing and conducting joint activities. The content is based on the main results of the reform of the Law of Obligations in the Russian Federation, new tendencies in the civil science and law enforcement practice. Court cases that contain new approaches to the interpretation of the contemporary Russian contract law has also been taken into account. In this regard, specific importance is given to the acts of the Supreme Court of the Russian Federation (for example, the decision of the Plenum of the Supreme Court of the Russian Federation of 24 March 2016, No. 7 "On application of certain provisions of the Civil Code of the Russian Federation concerning responsibility for the breach of obligations by the courts, " decision of the Plenum of the Supreme Court of the Russian Federation of 22 November 2016 No. 54 "On certain issues concerning the application of general provisions of the Civil Code of the Russian Federation concerning obligations and their fulfillment. ") Attention is paid to the legal nature, constituent features of a partnership agreement, the way they are enshrined in the contemporary civil legislation and applied in practice.

Old wine in new bottles? Revisiting contract farming after agrarian reform in Zimbabwe

ABSTRACTThis contribution explores emerging features of social relations of production as expressed through the contract farming system in Zimbabwe. It seeks to link earlier research on plantation-based outgrower schemes in tea and sugar that were on a modest scale, to contemporary contract farming in tobacco and cotton that has expanded to a relatively large scale in the post-land reform period. The article questions whether the current expansion wave is a qualitatively new process or a variant of ‘old wine in new bottles’ in terms of relations between growers and large capital. Some themes for research are then outlined potentially to address emerging pertinent issues arising out of contemporary contract farming arrangements.

Privity in e-Contract in Nigeria

The doctrine of privity of contract excludes a third party to a contract from claiming a right under a contract between specific parties that have voluntarily entered into the contract. It renders a third party a meddlesome interloper. That third party can neither enforce the contract nor be made liable in the contract. But there are exceptions to this general rule of the doctrine. These exceptions include the statuses of third party insurance, agency, trustee, and guarantor/surety. With the advent of e-contract it appears this doctrine can no longer hold sway across jurisdictions. By the nature of e-contract several parties may be involved in the formation of a contract between two parties. E-contracts are formed by the parties to it through the internet platform. Usually that platform is made up of different actors. These actors include the parties to the contract, Internet Service Providers (ISPs), Internet Content Providers (ICPs), manufacturers of hardware and software through which the parties connect and sometimes their agents as well. These actors hold the reins of the fundamental aspect of contract which is communication between the direct traditional parties to the contract. Any mistake by failure, negligence, or accident on the part of these actors could result in vitiating the contract or end up in breach of contract or fragrant frustration of the contract. Whereas a number of jurisdictions have one way or the other taken care of this innovation induced gap in their e-contract Nigeria is yet to close up the gap. The purpose of the paper is to re-appraise the doctrine and consider its status in contemporary contract, particularly e-contract, and suggest reforms in law of contract in that regard in Nigeria. The conduct of business transactions across the world is witnessing a new paradigm shift, an aspect of which this paper seeks to discuss and suggest a workable legal regime towards ensuring the purpose of law of contract by adopting the ‘liberal’ approach that recognizes the relationship between law and technology for the Nigerian jurisdiction.

Contemporary Social Contract Theory and Hegel’s Master/Bondsman-Relation

This contribution investigates whether Hegel’s critique of social contract theory is still applicable to contemporary contract theory proposed by, e. g., Rawls and Nozick. At first sight, they seem to have overcome the problems identified by Hegel because Rawls and Nozick appropriate the social contract as something essentially rational and normative (though in different ways). I argue, however, that for Hegel, their appeal to rational argumentation is not compatible with the concreteness of human individuals. A revised reading of the master/ bondsman-relation, emphasizing the role of the “fear of death”, shows the limited scope of contemporary contract theory.

Delving into promises: Conceptually exploring the beliefs constituting the contemporary psychological contract

AbstractThe psychological contract is used to examine the dynamics of the employee–employer exchange relationship. The dominant contract conceptualisation is that it is constituted by beliefs about ‘explicit’ and ‘implicit’ promises; however, there is a dearth of conceptual investigation regarding how other research fields understand promising and reconciling this with how the notion has come to be used in psychological contract theory. In particular, the notion of implicit promising remains conceptually and empirically underdeveloped, despite forming a key plank of the contemporary account of the contract. This paper explores these issues by presenting a cross-disciplinary review of promising and applying this to how the notion is used in the contract literature. A conceptual model is also developed to provide avenues to investigate how promise beliefs form in a contract context and their outcomes. Finally, research directions are outlined regarding the roles that beliefs other than promises can play in contract theory.

CONTRACT DOCTRINE, PREDICTABILITY AND THE NEBULOUS EXCEPTION

AbstractThere is a tendency in contemporary contract law for judges to “never say never” and permit an open-ended exception from the rule. This nebulous exception is designed to cater for the rare instance where application of the rule would be undesirable in the interests of justice. However, this kind of imprecise exception is deleterious in terms of the unpredictability it generates, as well as the attendant increases in time and costs that result. The “never say never” approach is to be discouraged in contract law where commercial predictability, while certainly not inviolable, nonetheless remains a weighty goal deserving of continued deference.

Private Law: Commutative or Distributive?

Allan Beever argues in his new book that there are two distinct forms of justice— commutative and distributive—and that we have forgotten about commutative justice, the form of justice that governs our interpersonal relationships. Consequently, we erroneously think of private law from the perspective of distributive justice, the form of justice that governs our relation to the state. Forgetting commutative justice, he claims, has been a serious philosophical mistake with potentially grave practical implications. Theoretically, says Beever, the modern view is wrong, because politics and distributive justice are grounded in our pre-political, interpersonal relationships. In other words, commutative justice is logically prior to distributive justice. Practically, the dominance of the mistaken modern view has led us to think of people too much as part of a collective and not as individuals and to over-emphasize the significance of the state. In this essay I challenge all of Beever’s claims. I argue that there is no basis for the claim that people these days have forgotten about interpersonal relationships, nor of the claim that interpersonal relationship are the foundation for politics. I challenge Beever’s historical account, arguing both that Beever has failed to provide any convincing argument for why commutative justice has been forgotten, and that there are historical facts that explain the changes in the structure of private law that he ignored. I then turn to Beever’s theoretical claims and argue that Beever’s view about the independence of commutative and distributive justice are indefensible. Even accepting pre-political norms of commutative justice as the foundation of politics, it does not follow that contemporary contract law should reflect such norms. Finally, I argue that contrary to Beever’s claim that commutative justice is apolitical, Beever’s views reveal a clear political bent, which Beever never defends. Note: A much shorter version of this essay will be published in Modern Law Review. In addition to what is mentioned in the abstract (which describes the shorter version), this SSRN version of the essay contains two additional sections. One is section VI, which examines whether Beever’s view matches legal doctrine (and concludes that it does not), and a long Appendix, which argues that Beever’s presentation of the various philosophers he discusses is often inaccurate and misleading. These sections are substantial, together making up more than half the text. Though not part of the review to be published, I believe they are important for a full assessment of Beever’s book as well as for a more general evaluation of corrective justice views of private law. To be clear, it was only the shorter version that was the assessed and accepted by MLR, and the anonymous referee or editors of the journal have not passed judgment on these additional sections. MLR’s acceptance of the shorter version in no way indicates that the journal accepted (or would have accepted) the additional sections. * Associate Professor, Osgoode Hall Law School, York University. I thank Vincent Chiao, David Howarth, and Charlie Webb, and an anonymous referee for Modern Law Review for their comments. I also thank Michael Quinn for answering a few questions about Jeremy Bentham.

Text and Context: Contract Interpretation as Contract Design

Contract interpretation remains the most important source of commercial litigation and the most contentious area of contemporary contract doctrine and scholarship. Two polar positions have competed for dominance in contract interpretation. In a textualist regime, generalist courts cannot consider context; in a contextualist regime, they must. Underlying this dispute are contrary assumptions about the prototypical contract each interpretive style addresses. For modern textualists, contracts are bespoke, between legally sophisticated parties who embed as much or as little of the contractual context as they wish in an integrated writing, and prefer to protect their choices against judicial interference by an interpretive regime including parole evidence and plain meaning rules. For contextualists in contrast, contracts are between legally unsophisticated parties in two prototypical settings. The first is the mass market, standardized contract between sophisticated sellers and unsophisticated consumers, who cannot bargain over contractual terms; the second involves commercial parties doing business in a deeply nuanced world where formal and informal understandings mix and the meaning of a particular contract can be illuminated by the parties' course of dealings. For the contextualist, willfully restricting a court's access to information bearing on the parties' real relationship in both cases degrades judicial interpretation. We argue that the narrow focus on which prototype should apply universally has erroneously framed discussion of the parties’ choices and led to an inconclusive and limited debate about the role of courts in contract interpretation. The range of options for parties and generalist courts is much more diverse and variegated than the choice between ex ante party autonomy and ex post adjudication. We present a typology of transactional settings — the design space for contract — sufficiently rich to capture the breath of current contractual experience but sufficiently parsimonious to clarify the central relationship between the factors that shape the design of any given contract and the role of courts in interpreting it. We show that design and judicial response depends, first, on the level of uncertainty and, second, on the thickness of the market — whether there are many traders or few engaged in a similar class of transactions. The higher the level of uncertainty, the less workable complete, state-contingent contracts become, and the more parties develop interpretive mechanisms based on rich and regular exchange of information on a project’s progress that allows each to gauge the other’s capacity to define and produce a product. The greater the number of traders engaged in a transaction, the more likely that the interpretive regime — terms adapted to current need — will be provided by a trade association or, given collective action problems, a public regulator. The interplay of uncertainty and scale illuminates new forms of contracting among legally sophisticated parties unanticipated in discussions of textualist prototypes, and recasts the contextualist prototypes as special cases that demand novel institutional responses, including generalist courts sufficiently versed in the parties’ practices that they resemble early courts of equity. More generally, our analysis reveals a surprising complementarity between public regulation and common law adjudication in a variety of settings. Contractual interpretation today should attend to today’s contracts and courts: Our aim is to escape the stalemate between textualists and contextualists and open the way for doctrine and debate to support the novelty of contemporary contracting practices.

Convergence and Unification of 19th-Century European Commercial Sales Law

In contemporary European contract law a patchwork of convergence, harmonisation and unification of commercial laws of contract can be witnessed. Why do certain commercial laws converge or even become unified, whereas others remain separate, national laws? In this paper two theories from law and economics — viz. competition between legal systems and game theory — are applied to nineteenth-century European commercial sales law to determine whether or not these concepts can explain the convergence and unification of commercial laws. First, the concepts of convergence by competition and unification by coordination are briefly explained. Second, the convergence of one of the consequences of the seller’s non-performance in a trade sale — immediate default upon the lapse of a delivery date — is examined for the legal systems of Prussia, France and the Netherlands. Third, the convergence of another of the consequences of the seller’s non-performance in a trade sale — a choice of remedies upon default — is examined for the jurisdictions within the German Confederation. Game theory is applied to a next step, the unification of German commercial sales law in the Allgemeines Handelsgesetzbuch, to highlight its explanatory force. The paper determines that these two concepts do not exclude but complement one another. Together they provide valuable tools to explain the convergence and unification of contemporary commercial laws. The paper concludes with comments on the future prospects for the convergence and unification of European commercial sales law.

Convergence and Unification of Nineteenth Century European Commercial Sales Law

Abstract: In contemporary European contract law a patchwork of convergence, harmonization, and unification of commercial laws of contract can be witnessed. Why do certain commercial laws converge or even become unified, whereas others remain separate, national laws? In this paper, two theories from law and economics - namely competition between legal systems and game theory - are applied to nineteenth century European commercial sales law to determine whether or not these concepts can explain the convergence and unification of commercial laws. First, the concepts of convergence by competition and unification by coordination are briefly explained. Second, the convergence of one of the consequences of the seller's non-performance in a trade sale - immediate default upon the lapse of a delivery date - is examined for the legal systems of Prussia, France, and the Netherlands. Third, the convergence of another of the consequences of the seller's non-performance in a trade sale - a choice of remedies upon default - is examined for the jurisdictions within the German Confederation. Game theory is applied to a next step, the unification of German commercial sales law in the Allgemeines Handelsgesetzbuch, to highlight its explanatory force. The paper determines that these two concepts do not exclude but complement one another. Together they provide valuable tools to explain the convergence and unification of contemporary commercial laws. The paper concludes with comments on the future prospects for the convergence and unification of European commercial sales law.

Contractual Penalties in Australian Law after Andrews: An Opportunity Missed

This article considers the extent to which an Australian court might be willing to declare a contractual clause to be a ‘penalty’, and so not be enforceable. A recent High Court decision takes a broader view of the courts’ jurisdiction to relieve against ‘penalties’ than has previously been the case. This article has two purposes; first, it critically considers whether the Court’s position is correct, having regard to the long history and rationale for the rule. Secondly, it considers whether the doctrine forbidding penalties in contracts remains an appropriate stand-alone doctrine in contemporary contract law, or whether a recasting of the law in this area is desirable. It concludes that the High Court missed an opportunity to consider more thoroughly the reform of the penalty-liquidated damages distinction, and should have subsumed that principle within the organising principle of unconscionability.

Interim Contracting (or Ex Tempore Contracting)

This Article argues that a cornerstone assumption of contemporary contracts scholarship is misleading and limited. Leading academic commentary explicitly assumes that contractual responsibilities are determined in the following way: parties determine many of their duties ex ante, by specifying terms at the time of contract formation, and the rest of the terms they leave vague, for a court to specify ex post if it should prove important. This ex ante/ex post dichotomy is the guiding framework in attempts to understand contract design and interpretation. For example, parties use terms like “merchantable” quality when the cost of being more specific up front is higher than the cost of relying on a court to later elaborate its meaning. Yet this dichotomy obscures a third, “real-time” approach to contracting: parties frequently leave terms unspecified and delegate ongoing determination to someone other than a court. This Article identifies this phenomenon, which can be called – as opposed to ex ante and ex post – “ex tempore” contracting. Using a unique cache of data only recently made available, this Article explores ex tempore contracting through a novel dispute management system now prevalent in the construction industry, called a “dispute board.” These expert panels radically reduce the cost and frequency of litigation by determining the parties’ responsibilities whenever the parties wish, including in the course of performance. Ex tempore contracting is not merely a dispute resolution system for the construction industry. Ex tempore contracting is also essential to the massive financial derivatives market and countless other transactions. This Article develops important insights for judicial interpretation of contracts and the scholarly analysis thereof. For example, the possibility ex tempore contracting casts doubt on the wisdom of information-forcing penalty defaults and urges courts to enforce ex tempore contracting clauses much more often than they currently do.

Ignoring the Parties' Silence: the Controversial Borders of Implied Terms

One of the most controversial issue of contemporary contract law is the role to be recognized to courts in the construction of the contracts’ content. Several recent European soft law codes tend to deal with contracts’ construction by means of the English doctrine of implied terms, a doctrine which in fact seems to become more and more popular also in civil law systems. The article first of all focuses on what appears to be the real underlying issue of contracts’ construction: the overall impression is that it is not quite a question of mimicking the parties’ presumed intention, but rather to decide on a certain risk allocation. Attention is then drawn to the possible factual circumstances in which courts seem to be more likely to imply terms. It will be noted that on the one hand, courts frequently imply terms in case of significant bargain power disproportion; courts, on the other hand, seem not to limit their possible intervention to these cases. The article will then make reference to some developments of contracts’ construction doctrines within the Italian and the English jurisprudence. In this regard, it will focus on the tests that courts declare to apply when implying terms, with the purpose of verifying the correspondence between what it is stated at the theoretical level and what it is actually observed at the practical one.

Contracts and Markets: A Very Short Essay Without Footnotes

Contract law is the quintessential law of a market economy. Strangely enough, however, the idea of markets plays a relatively minor role in contemporary contract law theory. This essay suggests that the purpose of contract law is to sustain markets as a social institution and shows how such a focus on markets qua markets might illuminate discussions of the law of contracts. This essay is only a sketch of an argument. I have kept it deliberately short (16 pages) and free of scholarly apparatus (no footnotes) in order to facilitate reading and feedback.

Effects of dark matter annihilation on the first stars

AbstractWe study the evolution of the first stars in the universe (Population III) from the early pre–Main Sequence (MS) until the end of helium burning in the presence of WIMP dark matter annihilation inside the stellar structure. The two different mechanisms that can provide this energy source are the contemporary contraction of baryons and dark matter, and the capture of WIMPs by scattering off the gas with subsequent accumulation inside the star. We find that the first mechanism can generate an equilibrium phase, previously known as a dark star, which is transient and present in the very early stages of pre–MS evolution. The mechanism of scattering and capture acts later, and can support the star virtually forever, depending on environmental characteristics of the dark matter halo and on the specific WIMP model.

Contract Formalism, Scientism, and the M-Word: A Short Reaction to Professor Movsesian's Under-Theorization Thesis

In two recent essays, Professor Mark L. Movsesian has suggested that a significant difference between the classical formalism of Williston and the formalism of contemporary contracts scholars is the extent to which the earlier work was under-theorized. I want to suggest an area in which there is a consistency to the under-theorization between the classical and the modern contract formalists: the extent to which theorization in anything that approaches metaphysics is, and has been, consistently anathema. Modern theorizing is overwhelmingly of a particular form: dispassionate social science inquiry into how we tick, rarely questioned but implicit norms shaped solely around the utilitarian, if not material, consequence of choices, all seasoned by the occasional post-modern expression of futility and desperation around the indeterminacy of moral issues. It does not address the way we might think about solving the problem outside of the formal models (whether classically or economically based) of the law. In a brief response to Professor Movsesian, I encourage debating over contract law not just in the context of pragmatics of instrumental reason, but as part of a broader inquiry into and struggle with the ends to which any endeavor is directed.

Post-Cretaceous to recent stress fields in the SE Moesian Platform (Bulgaria)

The reconstruction of the stress fields in the SE Moesian Platform in Bulgaria has been made by means of earthquake fault-plane solutions, tectonic fracture and fold patterns, and physical (electrical) anisotropy in rocks restricted stratigraphically from the Early Cretaceous up to the Late Pliocene. The philosophy of the study is that the recognition of the older stress fields for a given area can be successful if the characteristics of the youngest ones are known. The contemporary stress field is discussed using the fault plane solutions from earthquakes and the kinematics of the activated faults. The reconstruction of the Post-Pliocene paleo-stress field was made by studies of conjugate shear joints systems in Upper Pliocene limestones. Measurements of elements of tectonic fractures were also performed in situ on more than 60 outcrops of rocks aged from Aptian to Pliocene. A limited number of sites were studied for electrical anisotropy using the Azimuthal Vertical Electrical Sounding method. A more complete study of the tectonic meso- and micro-structures has been performed on the Sarmatian sediments in the SE Moesian Platform. This study includes a description of the discovered folds, brittle tectonic analysis and reconstruction of the Post-Sarmatian paleo-stress field. As a result, it was deduced that the compression after the Early Cretaceous period is NE–SW directed. The direction of compression since Sarmatian to Early Quaternary was NW–SE. A clockwise rotation of the main stress axes was established for a number of sites. The contemporary contraction is directed also NW–SE, according to the fault-plane solutions determined for crustal earthquakes in the region. This result is tested using the data from the GPS measurement recently performed in this part of the Balkan Peninsula. It could be suggested that there has been a clockwise rotation of the stress field due to the evolution of curved fold–thrust belt in the south-eastern Carpathians and the collision of the Balkanides with the Moesian Platform.

Online Auctions: Does 'Ebay' & Co. Provide New Tasks to Lawyers?

Commentators tend to consider the topic they are dealing with to be idiosyncratic. This is particularly true with respect to topics involving new technology. This paper examines the truth behind this statement with respect to online auctions, as exemplified by the auction platform ebay and others. This paper argues that online auctions exhibit few idiosyncratic characteristics with which cannot be dealt under contemporary contract law. The legal questions considered in the context of online auctions have been considered for decades under the general provisions for digital and general contract law, as established under the German Civil Code (Buergerliches Gesetzbuch). The fact that legal traditions offers solutions to the problems that new technologies bring about does not mean that new rules could easily (and should) transfer traditional methods into the digital age. This paper explores this argument, using examples from the German draft law on the communication among institutions and parties involved in legal proceedings (Justizkommunikationsgesetz) and recent German cases. As rapid change has become part of lawyers' day-to-day work, sometimes regulatory passivity furthers both the more efficient and the just decision. At least, regulatory passivity avoids the risk that the legislature blurs, rather than clarifies, the current legal situation by activist steps made under populist motives. Sometimes wisdom comes along with waiting.

Critical Race Realism: Re-Claiming the Antidiscrimination Principle through the Doctrine of Good Faith in Contract Law

This Article comprises the last leg of a larger project I have undertaken on the implied obligation of good faith in contract law. I have argued elsewhere that, as a descriptive matter, the doctrine of good faith and fair dealing in contract law, despite some theoretical controversy in the established scholarship on the doctrine, functions in contemporary contract law not as an implied contract term—as it was originally conceived—but as a rhetorical proxy for judicial analyses of material breach and constructive conditions relating to underlying breach of contract claims. While such applications of good faith have been of great functional value to courts, lawyers, and students of contract law, I have argued that these developments have caused good faith jurisprudence to languish in an impoverished state and to further detach from the doctrine’s equitable roots in implicit contractual obligation. As such, I also have argued from a critical race perspective that, as a normative matter and due to the inadequacies of civil rights remedies, good faith should be used to prohibit discriminatory conduct based on race, gender, sexual identity, age, and/or other categories of identity in the contractual context.

Freedom and Protection in Contemporary Contract Law

How should contemporary contract law be characterized? Freedom or protection? Ewoud Hondius has made a plea for increased protection of the weaker party in contract law. In this contribution some critical remarks are made. It is argued that freedom of contract should be put back on the agenda. This accords with the new belief in the blessings of the free market and the awareness that protection is not always effective and may sometimes even generate adverse effects. The application of competition law and the regulation of information should have a higher priority than mandatory substantive contract law.