Common Law Of Contract Research Articles

The Idea of Consideration

No doctrine of the common law of contract has been longer settled or more carefully developed than consideration. Yet none has proved more intractable to theoretical justification. This article suggests that the problem is not with consideration but rather with the theories that defend or challenge it, theories not equipped to explain the doctrine because they invoke functions and purposes that do not belong to the specific kind of relation that consideration necessarily establishes. In contrast with current approaches, the article argues that consideration is not a control device that, for various policy reasons, negatively excludes certain prima facie enforceable promises. Rather, it is constitutive of a kind of interaction that is the only basis on which parties may reasonably be held to have undertaken fully contractual obligations enforceable by expectation remedies. The article sets out the main features of the promise for consideration relation; then seeks to explain the juridical meaning and role of this relation; and finally brings out the contrast with reliance.

Boldly (Not Going) Where We Have Gone Before: The Principles of the Law of Software Contracts

The American Law Institute’s Principles of the Law of Software Contracts (“Principles”) is the latest in a long line of attempts to regularize contract law in the irregular subject matter of software and software contracts. Neither federal courts by applying state law nor state courts have been able to fix the law governing software contracting into any stable regime of contract law so courts have had to inconsistently apply the state common law of contracts, Article 2 of the Uniform Commercial Code, of the Uniform Computer Information Transactions Act (UCITA), either directly or by analogy, in whole or in part. This article contends that the Principles may be one of the founding documents for an eventual federal common law or statutory law of software contracting. Unfortunately as articulated, the Principles would largely be state law, so the Principles cannot authoritatively define its relationship as a body of contract law with federal law intellectual property law in order to meet the needs of both consumers and the software industry. There is no reason that the jurisdiction that eventually adopts the Principles needs to be either a state legislature or a state court. If the goal of the Principles is to establish a comprehensive rubric to inform and guide the orderly development of the contract law governing software transactions then either the federal courts must abjure the legal fiction that they are merely applying existing state contract law and then to openly develop a federal common law of contract governing software or in deference to Erie retain the fig leaf of being mere scriveners of state law interpretation, and then confront thorny issues of federal preemption and inconsistent state laws governing commercial or consumer transactions for intellectual property rights that are theoretically supposed to be uniform in all fifty states.

Judges, commerce and contract law

John Gava, Reader at Adelaide Law School, considers the question how should judges decide commercial cases, in particular, contract cases? He looks at the circumstances and impact of the use of contract law, with attention on common law contract and market needs. Published in Amicus Curiae – Journal of the Society for Advanced Legal Studies at the Institute of Advanced Legal Studies. The Journal is produced by SALS at the IALS (Institute of Advanced Legal Studies, School of Advanced Study, University of London).

England and the Continent: distinguishing the peculiarities of the English common law of contract. By Eugen Bucher (Translated from German by Tony Weir). Zurich; Dike Publishing, 2009. Pp. 58. ISBN: 978–3-03751–180–0. US$33.00; SFr 30.00.

<i>England and the Continent: distinguishing the peculiarities of the English common law of contract.</i> By Eugen Bucher (Translated from German by Tony Weir). Zurich; Dike Publishing, 2009. Pp. 58. ISBN: 978–3-03751–180–0. US$33.00; SFr 30.00.

Laws of Licensing: U.S. Computer Information Licensing Under the Common Law, the Uniform Commercial Code, and the Uniform Computer Information Transactions Act

License agreements govern most transfers of electronic information that is protected by intellectual property law. This paper will describe some of the distinguishing legal characteristics of digital information licenses. Then the application to licenses of U.S. state common law of contracts and Uniform Commercial Code (UCC) Article 2 in the 1980s and 1990s will be explored, focusing on issues respecting which these sources of law seemed to not address adequately the needs of licensing parties. The history of UCITA, the Uniform Computer Information Transactions Act, will be examined as an attempt to fashion a uniform statute customized to address the unique traits of license agreements. The paper will evaluate how well UCITA addresses licensing issues that are not adequately resolved by the UCC or the common law. Next, UCITA and Revised UCC Articles 1 and 2 will be compared. Finally, the future prospects for U.S. licensing law will be assessed.

Good Faith, Fair-Dealing and Disclosure Requirements in Hire-Purchase Contracts in Malaysia: Islamic and conventional Perspectives

This paper aims to analyze the importance of the element of good faith, fair-dealing and disclosure requirements in a hire-purchase contract from both Islamic and conventional financing perspectives. The application of good faith is determined at a particular time by those standards of honesty, fairness and reasonableness prevailing in a given community that are considered appropriate for formulation in new, revised rules. In the eighteenth century, the concept of fair-dealing was viewed as an essential concept and emerged as a governing principle applicable to all common-law contracts. Under Islamic Law, the elements of good faith (iÍsÉn) and fair-dealing (Ñadl) are important and highly emphasized. One of the conclusions made in this research is that good faith and fair-dealing are two crucial elements in hire-purchase contracts, both in the Islamic and conventional systems.

Modular argumentation for modelling legal doctrines in common law of contract

To create a programming environment for contract dispute resolution, we propose an extension of assumption-based argumentation into modular assumption-based argumentation in which different modules of argumentation representing different knowledge bases for reasoning about beliefs and facts and for representation and reasoning with the legal doctrines could be built and assembled together. A distinct novel feature of modular argumentation in compare with other modular logic-based systems like Prolog is that it allows references to different semantics in the same module at the same time, a feature critically important for application of argumentation in legal domains like contract dispute resolution where the outcomes of court cases often depend on whether credulous or skeptical modes of reasoning were applied by the contract parties. We apply the new framework to model the doctrines of contract breach and mutual mistake.

The Implications of Implied Terms in law in the Common law Contract of Employment

(2009). The Implications of Implied Terms in law in the Common law Contract of Employment. Oxford University Commonwealth Law Journal: Vol. 9, No. 1, pp. 73-100.

Efficient Breach, Reliance and Contract Remedies at the WTO

Recent attempts by scholars to apply the doctrine of efficient breach to the remedial system of the World Trade Organization (WTO) in order to maximize the joint welfare of trading parties suffer from two principle shortcomings – the difficulty of calibrating an appropriate remedy based on foregone trade and the reality that those truly injured by breach are the private third party exporters, not the contracting Member States. This article therefore proposes a remedy for WTO agreement violations consisting of monetary damages assessed at the reliance measure of common law contract. Breaching WTO Members will compensate exporters in the injured state in an amount commensurate with their expenditures undertaken in anticipation of liberalized trade, obviating the need for an estimated counterfactual and structuring reparation according to actual individual losses rather than on an aggregate state level. In addition to encouraging efficient breach, this method of setting damages has precedent in international law which should foster compliance, is aligned with the tort–like nature of WTO violations and serves an evidentiary purpose that is reflected in the common law’s concept of vesting of third–party rights.

Australian Workplace Agreements in Universities

This article details the use of Australian Workplace Agreements (AWAs) in universities after the Higher Education Workplace Relations Requirements (HEWRRs) mandated that all university staff be offered an AWA by the end of August 2006. It is clear from the evidence that, despite this requirement, at most universities there was little take-up of this form of individual employment arrangement. Of the few who did sign an AWA, one group stood out more than others — senior general staff. However at most universities, these workers have traditionally been employed on individual, common law contracts and moving them from one form of individualized employment arrangement to another did little to increase the overall pool of those on individual employment arrangements in higher education. Once these senior general staff were excluded from the equation, the take-up rate was very low indeed. The research demonstrates that the Howard government's approach to increasing the take-up rate of AWAs in universities failed. With the election of the Rudd Labor Government in November 2007, the very low take-up of AWAs has meant that the university sector has a relatively small task in moving staff back to collective employment arrangements.

Lord Hoffmann and the Common Law of Contract

Lord Hoffmann and the Common Law of Contract

Major Tribunal Decisions in 2007

Despite relatively low levels of industrial disputation in 2007, the AIRC delivered some significant decisions in relation to the `genuine operational reasons' exclusion to the unfair dismissal jurisdiction, and secret ballots for protected industrial action. However, arguably the most significant decisions in 2007 came from the Supreme Court of New South Wales and the Federal Court of Australia. These decisions illustrate that the common law contract of employment provides (increasingly) robust protections to employees from workplace injustices. This article examines recent developments in relation to the implied duties of good faith and of mutual trust and confidence. It also considers the prevalence of workplace policies in modern workplace relations and the circumstances in which workplace polices might give rise to enforceable contractual obligations and common law remedies for breach.

The Role of Judicial Method in the Relinquishing of Constitutional Rights Through Contract

Legal method is informed by legal culture and ideology. As such, legal method plays a significant role in the determination of the parameters of a constitutionally endorsed concept of contractual autonomy as against the substantive rights set out in the Bill of Rights. Judges therefore must be fully conscious of this reality in carrying out their adjudicative function. Section 39(2) of the Constitution sanctions the invocation of the common law framework and methodology to determine the reach of contractual autonomy within our constitutional dispensation. However, the framework and methodology employed by the common law of contract has generally favoured contractual autonomy as against competing common law rights. A blanket invocation of the pre-constitutional methodology could therefore inadvertently diminish the significance of substantive constitutional rights. Accordingly, the common law methodology must be reviewed against the substantively progressive aims of our constitutional order and adjusted appropriately to reflect the weight that ought to be attached to the respective constitutional rights. Here, judges can draw from ss 8(2) and 36(1) of the Constitution to guide the adjustment of the common law framework and methodology.

Employment Rights in an Era of Individualised Employment

On 7 August 2007, Gordon Anderson delivered his inaugural lecture after becoming a professor in the Law Faculty of Victoria University of Wellington. Gordon took as his theme the protection of employees employed on an individual contract of employment. Following the repeal of the award system by the Employment Contracts Act 1991 the majority of New Zealand employees ceased to be covered by collectively negotiated instruments. Instead the contract of employment became dominant. The lecture argued that the common law contract of employment provides little protection for employees. Instead protection depends on some critical statutory interventions that provide a degree of balance within the employment relationship. While not perfect, these protections may be the best that can be expected in the real world of employment.

Convergence of Civil Law and Common Law Contracts in the Space Field

This article explores the evolution of civil law and common law towards convergence, briefly addressing the history of the theoretical and philosophical perspectives that contributed to shape evolution and change within these two systems. The article analyses general features of the central aspects of contract theory in civil law and common law jurisdictions. As an example of convergence in the commercial contract realm, the article focuses on the analysis of the structure, characteristics and main clauses of the commercial space launch services agreements in both systems, stressing their similarities in structure, treatment and consequences.

The Continued Resonance and Challenge of the “Ius Commune” in Modern European Contract Law

The need for a more consistent and coherent European contract law is a current priority of the EC institutions. Despite decades of pointillistic legal harmonization, cross border transactions within the Internal market of the European Union continue to take place in the shadow of divergent procedural and substantive law rules, differing legal cultures and significant linguistic diversities. Whilst national contract law systems function more or less efficiently internally, it is their partial non-compatibility with other Member States’ private laws that provokes isolated distortions on the market. As a consequence, the European Commission has presented its ‘Common Frame of Reference’ research strategy aimed at fostering common contract law principles, model rules and uniform legal terminology, which, it is believed, will better facilitate commercial actors. The European Parliament has moved a step further by lending institutional credibility to the case for a European civil code. However, this clamour for codification of private laws – an idea premised on two formalisms, legal and economic – has in many respects overlooked the mechanics of modern commercial contracting in particular, the importance of contract drafting and the complex negotiations that lead to deals both domestically and cross border. This paper therefore provides an alternative assessment of the development of a Europeanius commune,or ‘common law’ of contract, and considers the urgency of improved means of legal information exchange in order to better facilitate the ongoing harmonization effort.

Did We Lose the Baby with the Bath Water? The Late Scholastic Contribution to the Common Law of Contracts

Whilst the materialisation of contract law during the latter part of the twentieth century has arguably reduced the theories of freedom and autonomy of private contract to "mere venerable principles which, on Sunday preaching, inspire much reverence in the hearts of the congregation, but leave their lives blissfully unaffected during the rest of the week," the common law of contract has remained in something of a thrall to the mantra of freedom of contract for much of the previous century. What do we know of the origins and development of the will theory in the common law of contracts?

The Common Law of Contracts: Are Broad Principles Better Than Detailed Rules? An Empirical Investigation

In this Article we are not endeavouring to engage in the debate at the level of theory. Rather, we are responding to the absence of any empirical verification of the assumptions on which the theory proceeds. Whether broad principles or detailed rules produce more just or more predictable outcomes is a question that has largely been left to the realm of speculative analysis. Additionally, no empirical studies have been conducted despite commentators' occasional requests for them. In this Article we report the results of three experiments involving the participation of 1800 subjects (law students and non-law students) in the resolution of disputes and the evaluation of judgments, using three different law models: (1) the common law of contracts (Case Law); (2) UNIDROIT Principles of International Commercial Contracts, a model code published by the International Institute for the Unification of Private Law in 1994 (UPICC); (3) the Australian Contract Code, a model code, written by us, and published by the Law Reform Commission of Victoria in 1992 (ACC). The research on which this Article is based was prompted by our interest in the codification of Australian contract law. In order to demonstrate its relevance to the jurisprudential debate, it is necessary to give some description of each of these three models.

The Interpretive Project and the Problem of Legitimacy

It is remarkable that the common law remains as vibrant and as vulnerable today as it was in the nineteenth century. Its vibrancy continues to be illuminated by its responsiveness to societal changes; its vulnerability continues to reflect the flip-side of that responsiveness: an inherent indeterminacy. The analysis that follows investigates the feasibility of maintaining the former characteristic while curtailing the latter, and it is limited to the common law in its interpretive capacity. The principal focus of the analysis is, in keeping with the theme of the conference, the common law of contracts. From that perspective, the Article articulates the problem of indeterminacy in contract cases and proposes a resolution. The crux of my argument is that indeterminacy undermines the legitimacy of the common law to the extent that interpretation in a particular case seems arbitrary or worse-biased and partisan. The antidote might be an interpretive rule regime that compels transparency in judicial decisionmaking. The obvious venue for the project is the Restatement. Because, contract law is primarily interpretive, a re-articulation of the Restatement (Second) of Contracts, which captures and makes explicit the predominance of interpretation in contract law and the availability of alternative interpretive rules at each step of judicial decisionmaking in contracts cases, would encourage judges to make their interpretive choices explicit and their reasoning more apparent. This, in turn, would constrain indeterminacy by holding judges responsible for persuading us that their choice of interpretive rules in a particular context was neither arbitrary, nor biased, nor partisan, but a legitimate choice among competing alternatives.

Relational Contracting In A Digital Age; Panel Discussion

If, as it has sometimes been argued, changes in contract rules and theory are strongly affected by changes in economic conditions, we should note that the world has changed a good deal since the early 1960s when relational contract theory began to bloom. The economic world of 2004 is very different from the world of 1964. Modern relational contract theory was born about the same time as its great theoretical competitor, the rational choice approach of the legal economists. It came before the vast changes wrought by the information revolution and the increased globalization of the economy. What has relational theory taught us over the past forty years? How has it changed and adapted in light of those great economic changes? Where is it going in the future? Those were the general topics at a panel discussion which took place June 8, 2004, at the Oxstalls campus of the University of Gloucestershire in Gloucester, England. It was part of a conference entitled, "The Common Law of Contracts as a World Force in Two Ages of Revolution," which marked the 150th anniversary of one of the most famous contracts cases of all time, Hadley v. Baxendale, and is the theme of the present Symposium. The Conference's object was to explore how the common law adapts to and influences the kind of revolutionary changes that have swept over our society in the past forty years, and which swept over England in the forty years before Hadley v. Baxendale.