General Contract Law Research Articles

EXISTENCE OF ARTIFICIAL INTELLIGENCE FOR AUTOMATION OF CONTRACT FORMATION BASED ON THEORY CONTRACT LAW

Artificial intelligent technology gives rise to contract automation. In contract law, intention is one of the principles of making contracts. In addition, contracts must also be formed based on the results of discussions and meetings of minds which result in accordance with the wishes or desires so that they can be included in a contract. Contract automation through Artificial Intelligent can be called a conflict of fundamental requirements for contract formation. The general contract law that has emerged through Artificial Intelligence does not take into account mental state and does not examine the true thoughts or intentions of the parties. Based on the explanation above this research aim is to find out Artificial Intelligent in contract formation based on the theory of contract law.
 Law is conceptualized as a norm or rule that applies in society and becomes a reference for everyone's behavior in normative legal research with the goal of discovering facts that are used as research data relating to the existence of artificial intelligent for automation og contract formation based on contract theory contract law. This research method employs a statutory approach involving a review of all relevant laws and regulations. This type of research is also known as descriptive-analytical research because the findings are presented descriptively and analytically, so this method was chosen
 The findings research, contracts formed using artificial intelligence are not legally binding, even if the technology underlying them advances. The technology that underpins them advances. Currently, despite the fact that computer programs or Artificial Intelligence create contracts. There is no authority to support any legal distinction based on the level of human involvement or program complexity. If the common law of contract is to introduce a distinction depending on how the theory of contract law is based on the appearance of the intent of a person or legal entity in making the statements in the contract as intended."Unintended contracts," or contracts that do not arise from the intention of a person or legal entity and are not based on the fairness and trust theory, will be prohibited

Good Faith in Construction Contract: A Common Law Perspective

The good faith principle requires contracting parties to be honest as well as consideringtheir contracting partners in performing their contractual duties. In the event, contract clauses are insufficient to protect the interests of the innocent party in a breached contract, the said innocent party may rely on the good faith principle to ensure the fair. However, applying good faith principles to construction contracts is a difficult task. By nature, construction contracts are unique due to the fact that parties (Client and Contractor) are presumed competent to carry out their parts of the contractual obligations. Controversially, the construction contract is often unfairly prejudicial as the Client would customarily have the upper hand in deciding the terms and conditions of a contract. It is the objective of the research to examine the relevancy of application of good faith principle in construction contractsby employingqualitative content analysis. This study adopts a qualitative research approach, mainly employing library and internet resources with the intention to explore relevant legislation, textbooks, journals, research papers and articles.The comparative approach in this paper used content analysis from primary and secondary legal resources of different jurisdictions in the United Kingdom, Malaysia and Australia to compare the application of the good faith principle in the context of construction contracts. The findings of the research revealsthat the adoption and application of the good faith principle in construction contracts is of limited usage even though it is widely usedin general contract law of United Kingdom, Malaysia and Australia.This article contributes to the knowledge of the good faith principle in construction contracts, particularly with standard form contracts, by highlighting the importance of the good faith principle in achieving a fairer functioning of construction contracts in its application.

A Theory of Contract Law: What Meaning and for What Purpose?

Abstract Each of the two parts of Peter Benson’s stimulating book raises an important epistemological question. In the first part, the aim is to search for the “true” theory of contract, the one that best explains the rules and doctrines of general contract law. In the second part, the author seeks to convince that his theory is the best one, in the sense that it is the one that provides the most appropriate moral basis in a liberal democratic society; in other words, the one that allows the greatest “justice” in transactions. A third formidable epistemological question then arises: whether “truth” and “justice” are identical.

The Place of Contract for Digital Thing in Latvian Contract Law Within the Context of the Consumer Sale Directives 2019

The article aims to explore the place of contract for digital thing (i.e., a good with digital elements; digital content; and digital service) from the point of view of Latvian contract law considering the recently adopted Consumer Sale Directives 2019 (Directives 2019/770 and 2019/771). The topicality of the article’s theme is rooted in transposition of these directives into Latvian national law. On the one hand, it is necessary to find a proper place for classification of contract for a digital good considering approaches and contents of Latvian contract law for the appropriate understanding of this contract within Latvian contract law and, speaking broadly, Latvian civil law. On the other, the transposition of these directives would mean that digital goods for nonconsumers will remain without explicit regulation because these directives are intended to be transposed into consumer rights protection law being as lex specialis without introducing any amendments into general contract law. At the beginning, the present article provides an overview of the place of contract for a digital thing before transposition of the Consumer Sale Directives 2019 into Latvian consumer rights protection law, i.e., in the current regulation of Latvian contract law. The article continues with analysis of the expected place of contract for a digital thing after the currently intended transposition of these directives. Afterwards the article addresses the consequences of that transposition. The article concludes with summary following the discussion contained therein.

Sustainability Clauses in an unsustainable Contract Law?

Abstract Companies in global value chains respond to the general sustainability agenda in society by inserting sustainability clauses into their contracts and it has been argued that there is a need to develop general contract law (default contract law rules) in order for it to be able to respond to this sustainability agenda. This article firstly examines the basis for this view and three specific areas of interest in this regard. Secondly, it draws attention to the internal tensions that will be created in the chain by on the one hand pursuing sustainability goals, external to the interests of the contracting parties, and on the other hand a consequential need to protect the supplier as the weaker party in the chain.

Osvrt na regulativu saobraznosti i garancije u mađarskom pravu - primer transpozicije Direktive 1999/44/EZ u opšta pravila ugovornog prava

In 2002 Hungary transposed the Directive 1999/44/EC on certain aspects of sale of consumer goods and associated guarantees, by amending the Civil code of 1959, rather than integrating the rules of the Directive into the then-effective Law on the Protection of Consumers of 1997. Such an approach reveals some advantages if compared to the Serbian law. Namely, in Serbia the former Law on the Protection of Consumers of 2010 introduced special rules pertaining to conformity and guarantees in consumer sales contracts. Consequently, the need arose to limit their scope of application from the general rules of the Law on Obligations of 1978 on the conformity and guarantees. By the transposition of the rules of Directive into the Hungarian Civil code a unique set of rules on conformity and guarantees has been created that has a general scope of application. While they are applicable to all contracts, the number of special rules applicable only to consumer sales contract is in fact relatively small. Furthermore, Hungarian law provides an example of coordinated functioning of commercial and obligatory guarantees. Commercial guarantee is, like conformity, regulated uniformly in the Civil code, applicable to both consumer and non-consumer contracts. Apart from commercial guarantees, there are several obligatory guarantees in Hungarian law introduced by decrees of the government, whereby their scope of application is clear. In contrast, the legal nature and scope of application of guarantee under the Law on Obligations in Serbia became vague after the adoption of the former Law on the Protection of Consumers of 2010, which introduced commercial guarantees in consumer sale contracts. This is also one of the negative implications of the transposition of Directive 1999/44/EC into the Law on the Protection of Consumers, instead of incorporating them into the rules of general contract law. The main legislative approach adopted in the former Hungarian Civil Code has not been changed in the new Code from 2013 either: conformity and guarantee remain regulated by the general rules of contract law. Obligatory guarantees introduced by decrees of the government also remain in force. A significant novelty in the new Code is the introduction of a direct liability of the produced or consumer goods, a legislative possibility offered by Directive 1999/44/EC.

The textual layers of European contract law

The article traces the historical stages and main milestones of the process of harmonization and attempts to unify European contract law. Its first stage lasted from 1980 to 2015, marked by the appearance of many texts of a generalizing nature, designed to become the basis for the development of uniform contract law in the EU, and smoothly flowed into one another forming various conceptual layers of the emerging general contract law of Europe. The author identifies 10 different layers of the main text prepared by various Commissions and Working Groups in the corpus of texts accumulated during the process of developing model rules of European contract law. Taking into account the different versions of these texts, there are also 18 textual layers, to which 13 important EU directives and at least 6 international conventions or draft conventions concerning the general part of contract law and the law of sale of goods or certain aspects of these areas should be added. It is also noted that there are competing national projects that are marginal in relation to the European mainstream, which should also be taken into account. Political and other reasons for the failure of certain drafts are explained. Their advantages, defects and features are considered. In the process of describing the history of the rise and fall of the idea of uniform contract law in Europe at the recently completed first stage of its implementation, the author analyzes the reasons for the failure of this process and in conclusion provides a brief description of the international research project in which he was a participant. This project led to the publication in the summer of 2018 of comprehensive “Commentaries on European Contract Laws”, which can give a “second wind” to the trends of harmonization of contract law in the EU and beyond.

Adhezioni ugovori u francuskom pravu

The paper starts from adherence to a contract that is functionally understood as consent of the will, although it has certain specificities, which is why it is defined in all legal systems as a special legal regime that essentially applies to all forms of contract prepared by one party, regardless of the existing terminological and conceptual differences. French contract law, as otherwise very influential in the world and with the most influential civil codification ever, has influenced many legal systems, including Serbian. The impact is primarily reflected in the term adhesion contracts, which today, both in that original form and their translated versions - contracts upon accession and contracts by consent - are still connected with the French law. Theoretical postulates of this concept in France and its adoption, i.e. reception in domestic civil law science, as well as legal regime in amended French Civil Code are explored. The focus is on the extended authority of the court to intervene in private contractual relations, as well as the current tendencies of introducing rules primarily designed for consumer contracts and consumer protection into the general contract law regime, i.e. the process of adopting them as general rules of contract law.

Empowering Authors via Fairer Copyright Contract Law

The remuneration of Australian authors has been decreasing over the last few decades, partly due to unfair contracts between authors and publishers. At the same time, Australian copyright law appears to do nothing to address the problem. The freedom of contract doctrine that still prevails in Australian copyright contract law is not able to tackle the problem of unfair distribution of revenues effectively, and its shortcomings are not well addressed by either general contract law doctrines or collective bargaining in the publishing sector. This article argues that Australia should consider addressing the problem by introducing certain rights inalienability restrictions in copyright law that are available in a number of jurisdictions overseas. The article discusses the rationales of introducing such provisions under Australian copyright law, such as unequal bargaining power, the prediction problem, fairness and utilitarian approaches. It counters the arguments that alienability restrictions are ineffective, and refers to the most recent empirical studies that show the ability of some alienability provisions to increase author remuneration.

Empowering Authors via Fairer Copyright Contract Law

The remuneration of Australian authors has been decreasing over the last few decades, partly due to unfair contracts between authors and publishers. At the same time, Australian copyright law appears to do nothing to address the problem. The freedom of contract doctrine that still prevails in Australian copyright contract law is not able to tackle the problem of unfair distribution of revenues effectively, and its shortcomings are not well addressed by either general contract law doctrines or collective bargaining in the publishing sector. This article argues that Australia should consider addressing the problem by introducing certain rights inalienability restrictions in copyright law that are available in a number of jurisdictions overseas. The article discusses the rationales of introducing such provisions under Australian copyright law, such as unequal bargaining power, the prediction problem, fairness and utilitarian approaches. It counters the arguments that alienability restrictions are ineffective, and refers to the most recent empirical studies that show the ability of some alienability provisions to increase author remuneration.

The effectiveness of French contract law in the face of Internet giants

Purpose – The article analyzes the French contract law in order to assess its usefulness to provide regulatory means of the big techs. It shows that the recent reforms of the French contract law have not been able to empower the consumers and result in a stronger protection against abuse.
 Methodology/approach/design – The article evaluates the contractual relations between the big techs and their users, with a special regard to the French law (general contract law, the commercial law, and the consumer law). It demonstrates the limits of the general contract law due to the complexity of the contractual subject, named as Internet service. In addition, the article assesses the means of protection: liberty to contract, codes of conduct, and, judicial lawsuits.
 Findings – The article concludes that the French contract law will only be able to offer effective protective results by benefitting the Internet users if there is an increase of the collective lawsuits, filed by consumers´ protection groups or by state agencies like the Ministry of the Economy. Two other solutions exist, such as codes of conduct and the recognition of more liberty to the users. However, they both have specific limitations to produce effective results.

Enforceability of electronic contracts in light of the Ethiopian General Contract Law: appraising the issues

ABSTRACTModern information communication technologies, especially the Internet, have been extensively used in contracts. Yet laws which govern contractual relationships were passed at a time when Internet was unknown. Due to this fact, conventional contract laws empirically face significant challenges to address legal controversies arising from electronic contracts. In the same fashion, Ethiopian General Contract Law is unfit to accommodate legal controversies resulting from the occurrence of electronic contracts. The main legal challenges due to the development of electronic contracts are uncertainty regarding legal recognition of data messages, issues associated with consummation of consent, attribution of communications, input errors, time of contract formation, formality requirements, variation, notice of nonperformance, privity of contract, admissibility and parole evidence rule of electronic records. The above-underlined issues, which stem from the emergence of electronic contracts, are hardly addressed by our civil code. Therefore, this work is mainly meant to make a humble attempt to examine the appropriateness of the Ethiopian General Contract Law to accommodate technologically driven electronic contracts.

"The Common Law is … not what it used to be"*: Revisiting Recognition of a Constitutionally-Inspired Implied Duty of Fair Dealing in the Common Law Contract of Employment (Part 1)

This piece, which is in three parts, will revisit the importation of fairness into the employment contract (outside and independent of the fairness-based provisions of our labour legislation) by a line of Supreme Court of Appeal (SCA) judgments during the 2000s. This process culminated in the recognition of an "implied duty of fair dealing" in the common-law employment contract. This piece will discuss such developments, will argue that such an implied duty still forms part of our law (despite apparent consensus in the literature that the SCA turned its back on such earlier judgments), will critically examine some of the arguments for and against the recognition of such a duty, and will then consider the issue within the broader context of the role of good faith and fairness in our general law of contract.
 

"The Common Law is … not what it used to be"*: Revisiting Recognition of a Constitutionally-Inspired Implied Duty of Fair Dealing in the Common Law Contract of Employment (Part 3)

This piece, which is in three parts, will revisit the importation of fairness into the employment contract (outside and independent of the fairness-based provisions of our labour legislation) by a line of Supreme Court of Appeal (SCA) judgments during the 2000s. This process culminated in the recognition of an "implied duty of fair dealing" in the common-law employment contract. This piece will discuss such developments, will argue that such an implied duty still forms part of our law (despite the apparent consensus in the literature that the SCA turned its back on such earlier judgments), will critically examine some of the arguments for and against the recognition of such a duty, and will then consider the issue within the broader context of the role of good faith and fairness in our general law of contract.
 

"The Common Law is … not what it used to be"*: Revisiting Recognition of a Constitutionally-Inspired Implied Duty of Fair Dealing in the Common Law Contract of Employment (Part 2)

This piece, which is in three parts, will revisit the importation of fairness into the employment contract (outside and independent of the fairness-based provisions of our labour legislation) by a line of Supreme Court of Appeal (SCA) judgments during the 2000s. This process culminated in the recognition of an "implied duty of fair dealing" in the common-law employment contract. This piece will discuss such developments, will argue that such an implied duty still forms part of our law (despite the apparent consensus in the literature that the SCA turned its back on such earlier judgments), will critically examine some of the arguments for and against the recognition of such a duty, and will then consider the issue within the broader context of the role of good faith and fairness in our general law of contract.
 

The Impact of the French Doctrine of Significant Imbalance on International Business Transactions

This article examines the concept of “significant imbalance” (SI) under French law and its impact on international business transactions. “Significant imbalance” is a legal standard meant to assess whether a contractual clause is unfair (abusive). Although initially restricted to consumer law, it has been extended to general contract law with the implementation of a reform entered into force on 1st October 2016. Previously, the Commercial Court of Paris in the ruling Ministry of Economy et al. v. Expedia, Inc. et al. (2015) had qualified SI as an “overriding mandatory provision” (loi de police) under EU Regulation No. 593/2008 on the applicable law to contractual obligations (Rome I). As a consequence, SI became operative in respect of international contracts despite an express choice of a foreign governing law made by the parties to the transaction. This article argues that, as a result of Expedia and the 2016 reform, French courts can interfere with international business transactions by striking down contractual terms that they deem unfair according to the SI standard. The analysis focuses on two key issues. On the one hand, notwithstanding recent judicial precedents, SI still fails to provide a reliable test for predicting which clauses or contracts are at risk of being deemed unfair. On the other hand, the legal arsenal supporting French legislator’s disapproval of SI allocates great power to French courts and the French government to pursue tort lawsuits against foreign companies allegedly oppressing their commercial partners with SI clauses. Empirical evidence shows that these actions are highly successful compared to those commenced by private actors. The article concludes that all these aspects, together with SI’s turbulent case-law throughout the years, will sprout uncertainty in international business transactions and may eventually disparage France in the global competition in such a field.

The issue of direct sales and direct marketing law and enforcement in Thailand: A comparative study of the relevant UK and Malaysia laws

Following the formation of the ASEAN Economic Community (AEC), this research paper reviewed the enforcement problems from the Direct Selling and Direct Marketing Act 2002 (DSDMA) that was concluded in 2015 using a documentary or qualitative study and related laws in Thailand, the UK, and Malaysia for a comparative study on individual issues reflecting the problems that need to be solved. In addition, direct field surveys, (in-depth interviews and focus groups) can help clarify the problems based on the experiences of the relevant groups of people (consumers, business sectors, and sales agents). The findings revealed that the income and profit from the direct-sales business has increased worldwide as shown from the records of the World Federation of Direct Selling Associations with income in 2016 of USD 182.6 billion (WFDSA, 2017) with the biggest ASEAN market. Its mechanism, pattern, and a high remuneration influenced some swindlers to disguise businesses and resulted in the formation of pyramid schemes which affected the country's economy. In order to protect consumers from such fraud, border enforcement, sub-laws, and guidelines need to be in position. In the short term, it is suggested to reconsider and clarify the relevant laws, and business practices and to increase sanctions especially for money scheme fraud. The Office of the Consumer Protection Board (OCPB) is proposed to be the principal agency through integration with other relevant organizations to adopt a more proactive strategy. In the long term, the OCPB may adjust to be a quasi-organization that is autonomous. Consumers should also be more aware of business fraud and learn to be more protective to eliminate some problems. If self-regulation were in place, specific legislation might not be needed, but could instead be integrated into general legislation, for example, contract and criminal law as in the USA and perhaps in Malaysia in the near future.

The Functional Method to Study General Part of Contract Law in Historical Perspective: Pro Et Contra

Comparative legal history is a fashionable new discipline which aims at a better understanding of the law's past by comparing similarities and differences of legal phenomena in two or more jurisdictions beyond the limits of national legal histories. Despite its popularity in Europe, it still lacks comparative projects that cover both Western and Eastern areas of the Continent, not least because the methodology of such comparison requires proper consideration and cannot be simply copied from comparative law or national legal histories. The present article evaluates the applicability of the dominant method of today's comparative law (the functional one) in the domain of the general contract law of the first codifications in the major jurisdictions of Continental Europe (Austria, France, Germany, Russia) during the 'long 19th century'. This subject matter is chosen by way of example as a 'legal cross-road' of legal concepts and models, more susceptible to changes, innovations, borrowings, and closely linked to social needs. In the main part of the article, it is argued that the adaptation of the functional method to the needs of comparison in legal history becomes plausible due to at least two factors. First, comparatists mitigated the rigid assumptions of the 'classical' functionalism of the 20th century (rejecting its privileged status and purely functional perception of law, irrebuttable presumptions of similarity and unification of compared legal systems etc.). Second, many legal historians, like the drafters of the first civil codes in Western and Eastern Europe, also believe that law is more than minimally connected to social problems and manifests itself primarily through its actual application. On the basis of such premises, the author of this article discusses potential benefits and limitations of researching general contract law in the selected jurisdictions with the functional method. At the preparatory (descriptive) stage, it can be useful to assure comparability of contract law in the selected civil codes, to identify omissions in the codified general rules on contracts, and to arrange legal provisions around practically relevant issues. At the stage of analysis, functionalism can be coupled with teleological interpretation of legal norms to enable us to understand better the link between the application of the legal rules, their legal purposes, and the practical social problems serving as tertium comparationis for all the compared jurisdictions. A sketch of such an analysis in the final part of the article allows to conclude that a research with the help of the functional method narrows our perception of law as a cultural phenomenon and breaks the inner doctrinal logic, but in return, it offers a starting point for a much needed dialogue of legal historians with a wider legal community.

Privacy Property, Information Costs, and the Anticommons

The current law of privacy is a hodgepodge of rights and remedies. Some rights arise out of a specific statute, others arise out of the general common law of torts and contract. Each system for protecting privacy has its own distinctive remedial scheme. Some rights are backed by public enforcement alone, some by private rights of action, some by both. Some come with compensatory damages, others with attorneys' fees, punitive damages, or statutory damages. Even where a private right of action exists, however, that right is often enforced by civil liability, rather than property-based entitlements. While this essay argues for property-based protection of personal data, its principle goal is to take seriously (and propose techniques for minimizing) the costs associated with the coordination problems created by a regime of information property.

The law governing international commercial contracts and the actual role of the Unidroit Principles

The traditional and still prevailing approach to “nationalize” cross-border transactions and to subject them to the law of a particular country as if they were purely domestic contracts, may be criticized for a number of reasons. The Unidroit Principles of International Commercial Contracts – the most important soft law instrument in the field of general contract law, first published in 1994 and now in their fourth edition (2016) – could constitute a valid alternative to the traditional State-law centred conflict-of-laws approach. Yet why is it that, despite the widely acknowledged intrinsic merits of the Unidroit Principles, their relevance in practice is still rather limited? The Author, after pointing out that the main reason for the continuing dominance of national laws is the inherent conservatism, coupled with a good deal of provincialism, of the legal profession, shows that nonetheless there exist significant “market niches” that the Unidroit Principles may, and actually do, fill with considerable success.