Theory Of Contract Law Research Articles

Pertanggungjawaban Hukum Kepada Lender dari Konsep Bisnis Inventory Financing serta Penyelesaian Sengketa

The Inventory Financing business model is starting to develop in the peer-to-peer lending system in Indonesia. The development factor from peer-to-peer lending to Inventory Financing is the existence of collateral that is still controlled by the borrower (debtor). This research examines the legal responsibility of the lender in Inventory Financing, and dispute resolution when one party is negligent in performing its obligations. This article aims to find Inventory Financing arrangements that protect lenders and dispute resolution methods of Inventory Financing. This research uses a normative juridical method (desk research) using secondary data, namely laws and regulations and theories of contract law, development law, and legal protection. The findings in this study are that Inventory Financing is still not regulated, so it has the potential to cause disputes in its implementation. Another finding is that the method of resolving inventory financing disputes can be done through judicial and non-judicial institutions (Alternative Dispute Resolution Institutions). Alternative Dispute Resolution Institutions can be ideal because they can resolve problems quickly, easily, and cheaply.Keywords: Alternative Dispute Resolution Institution, Financial Services Authority, Peer to Peer Lending

Институт договора как частноправовое средство обеспечения экологического предпринимательства

The author gives a brief historical excursion into the theory of contract law and examines the discourse on identifying business law as a separate branch of law. The article provides a civil law description of contracts in the field of environmental entrepreneurship, considers the possibility of separating them into a separate category of business contracts, and examines the theoretical features of this type of contract. The author especially emphasizes that contracts in the field of environmental entrepreneurship use the entire toolkit of contract law, are actively used in the process of environmental entrepreneurship and fix both services for the transfer of property into ownership and obligations for the provision of services. Based on the results of the study, the author tries to answer a difficult question: can contracts in the field of environmental entrepreneurship be classified as business contracts as an institution in the field of business law.

The importance of being relational: comparative reflections on relational contracts in Australia and the United Kingdom

The notion of the relational contract, previously limited to academic circles, is now being articulated by some courts. The consequences are threefold. Firstly, these judicial decisions are challenging the conception of agreements in the common law. Secondly, these decisions acknowledge the particularity of some long-term commercial relationships and shift the spotlight onto the relations of the parties. Thirdly, they are being used to integrate obligations to act in good faith. This article will show how these decisions implement the developing theory of relational contracts. The article will discuss recent developments in the United Kingdom and Australia and reflect on the parallel course the two jurisdictions are taking. By providing a bird’s-eye view of normative changes affecting some long-term transactions, the aim of the article is to reflect on how contract law is being reshaped by the recognition that, in some contracts, the relationship, not self-interest, is the vital thing, demonstrating a move away from traditional contract law theory.

Aristotle, Contract Law, and Justice in Transactions

This article sheds new light on Aristotle’s conception of voluntary corrective justice through an engagement with Peter Benson’s theory of transactional justice as expounded in his new work, Justice in Transactions: A Theory of Contract Law. Benson relates his theory of transactional justice to Aristotle’s conception of voluntary corrective justice. He also states that his theory “engages some fundamental themes and outstanding questions arising from Aristotle’s account” (2019: 30). The article provides a faithful reading of the nature and working logic of voluntary corrective justice as envisaged by Aristotle to argue that Benson neither thematizes the link between his theory and Aristotle’s conception of voluntary corrective justice, nor sheds new light on Aristotle’s thought on justice more generally. In fact, the article shows, Benson’s views on justice are incompatible with Aristotle’s. This is unfortunate, the article concludes, for Benson’s contract law theory is otherwise fascinating and analytically coherent. Keywords: contract law; transactional justice; Aristotle; corrective justice; Peter Benson.

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

Application of the Pacts Sunt Servanda Principles in the settlement of business Disputes through Arbitration

Arbitration is a means of resolving business disputes that is most similar to a court body and is considered to have many advantages over other alternative dispute resolutions. Pacta Sunt Servanda is one of the main principles of Arbitration, which states that the settlement produced in a settlement is binding on the parties, like a law must be faithfully executed. Arbitration must be respected and followed by the parties in addition to their obligation to resolve conflicts through mediation. Pursuant under Article 3 of the Arbitration and Alternative Dispute Resolution Act No. 30 of 1999, if parties to a commercial dispute have engaged in an arbitration settlement, The District Court isn't entitled to make your mind up among the parties. A normative approach to legal principles is used in this work. This research is descriptive-analytical, and it collects secondary data from legal materials such as laws and regulations, literature, and legal documents relevant to arbitration law utilizing a document study data gathering tool, contract law and legal certainty theory, where the research results will be analyzed qualitatively.

Kripto kao predmet ugovorne obligacije prema Uredbi o tržištima kripto imovine (MICA) i Zakonu o digitalnoj imovini

The paper examines the legal status and treatment of crypto assets in the context of contractual obligations. The analysis begins by considering the evolution from cryptocurrencies to crypto-goods, with special reference to definitions and terms used in the context of private law transactions. Then, the author focuses on the contractual parties under the EU Regulation on Markets in Crypto Asset (MiCa, 2023) and the Serbian Digital Assets Act (DA Act, 2020), where crypto-assets are predominantly treated as investment assets. Special attention is given to e-money tokens in the context of monetary obligations, as well as to Non-fungible tokens (NFTs) that have not yet been covered by regulations. The paper also refers to the contracting of crypto services, exploring how contractual relationships are formed and regulated, and elaborating on legal transactions based on contracts within the blockchain environment and tokenization. In conclusion, the paper draws attention to the problematic terminology used in the Serbian Digital Assets Act (2020), stating that the term "digital asset" (srb. "digitalna imovina") is too broad and inadequate, and proposes the term "crypto asset" (srb. "kripto dobro") which is defined through two key elements: the private nature of the good and the use of cryptography within the Digital Ledger Technology (DLT). This paper correlates the general theory of contract law and nominate contracts when the contractor's performance is in crypto.

Unfaithful: Love, Adultery, and Marriage Reform in Nineteenth-century America

Unfaithful: Love, Adultery, and Marriage Reform in Nineteenth-century America

The importance of being relational: comparative reflections on relational contracts in Australia and the United Kingdom

The notion of the relational contract, previously limited to academic circles, is now being articulated by some courts. The consequences are threefold. Firstly, these judicial decisions are challenging the conception of agreements in the common law. Secondly, these decisions acknowledge the particularity of some long-term commercial relationships and shift the spotlight onto the relations of the parties. Thirdly, they are being used to integrate obligations to act in good faith. This article will show how these decisions implement the developing theory of relational contracts. The article will discuss recent developments in the United Kingdom and Australia and reflect on the parallel course the two jurisdictions are taking. By providing a bird’s-eye view of normative changes affecting some long-term transactions, the aim of the article is to reflect on how contract law is being reshaped by the recognition that, in some contracts, the relationship, not self-interest, is the vital thing, demonstrating a move away from traditional contract law theory.

PRECONTRACTUAL JUSTICE

ABSTRACTThis article develops a theory of just contractual relationships for a liberal society. As a liberal theory, our account is premised on liberalism's canonical commitments to self-determination and substantive equality. As a theory of contract law, it focuses on the parties’ interpersonal interactions rather than on the justice (or welfare) of the social order as a whole.Normatively, the article claims that the rules governing cases where one party experiences harsh circumstances or vulnerability during the bargaining process or operates under significant informational disadvantage must be guided by the commitment to relational justice, that is, to reciprocal respect for self-determination and substantive equality. Jurisprudentially, the article studies the systemic difficulties hindering the translation of these normative prescriptions into legal language and analyzes how they affect the form assumed by the law of precontractual justice and its institutional pedigree.

Understanding the phenomenon of a real contract: stereotypes, new approaches, and scientific value

The article deals with the definition of a real contract. It is shown that understanding the phenomenon of a real contract is based on the stereotypes: it is defined as an act of transferring a thing in the purchase and sale (tradition). This stereotype does not reflect reality. The transfer of a thing based on the sales contract is not a contract or any other transaction at all. This transfer is an execution of the sales contract. The real contract is a purchase and sale contract. In order to overcome stereotypes in the understanding of a real contract, a new methodological approach based on the doctrine of the subject of civil contractual regulation is required. The basis for classifying civil law contracts is the classification of contracts by the subject of regulation. The real civil contract is a civil contract aimed at regulating proprietary legal relations. Understanding the phenomenon of a real contract has scientific value, since it allows us to identify the legal nature of a real contract, and advances the theory of contract law by classifying contracts by the subject of regulation into obligation, real and real obligation ones.

A Philosophy of Contract Law for Artificial Intelligence: Shared Intentionality

This is a chapter for the forthcoming book, Contracting and Contract Law in the Age of Artificial Intelligence, edited by Martin Ebers, Cristina Poncibo, and Mimi Zou, to be published by Hart Publishing. The aim of this chapter is to offer a general theory of contract law to account for the inclusion of artificial intelligence in contract practices. Artificial intelligence brings out that what makes contract law a distinctive form of legal obligation is shared intentionality. I refer to this insight as the shared intentionality thesis. Shared intentionality is the psychological capacity of one agent to share and pursue a joint goal with another agent. It is an attribute of human thought empowering human planning and the ability to share agency with others. Shared intentionality leads to a focus on objective intent to enter contractual relations in Anglo-American contract law as the primary concept in understanding what is distinctive about contractual obligation. The doctrine of objective intent in contract law operates as a Turing test for determining whether a contract has been formed. The chapter explains that it does not matter which “mind” is thought to produce this intent – human or artificial. The issue is attribution of the right sort of mental states by one contract party to another. Daniel Dennett’s notion of the intentional stance, as well as philosophical work on mindreading, can assist in developing this argument. The chapter focuses on understanding how folk psychology can lead humans to the sort of recognition that is needed to engage with increasing levels of artificial intelligence in contracting. What gives artificial intelligence intent is not some internal workings of its programming but us – the ascription of intentionality to artificial intelligence by humans. But the intentional stance on its own does not offer an adequate explanation of a special kind of intent that is needed for contract formation. It does not inform us about the sort of “we” intentionality or the ability to engage in future directed intentions as elements of stable plans of action in the form of contracts. Shared intentionality, a concept developed by philosopher Michael Bratman, evolutionary anthropologist Michael Tomasello and others, is the core of contractual obligation. It does not matter whether this shared intentionality is the result of human or artificial agency. Of course, artificial intelligence on its own does not yet have the sort of agency required for shared intentionality but it likely will in the non-too-distant future.

Fundamental Rights, Contract Law and Transactional Justice

Abstract This article critically engages with Peter Benson’s theory of contract law. It explores whether his juridical conception of contract as a transfer of rights, which is governed by the contract law’s internal principles of transactional justice, can be reconciled with fundamental rights. The article argues that the conventional distinction between the direct and indirect horizontal effect of fundamental rights is problematic because it does not make it unequivocal which body of law – fundamental rights or contract law – substantially governs the relations between contracting parties and determines the outcome of disputes between them. The answer to this fundamental question, however, is crucial for the stability of Benson’s theory of contract law. Drawing on the European experience, the article shows that the relationship between fundamental rights and contract law can take the form of the subordination of contract law to fundamental rights or the complementarity between the two. While the latter is compatible with Benson’s theory, the former is in tension with it. For the sake of conceptual clarity, therefore, it is useful to distinguish between three forms of the horizontal effect of fundamental rights in contract law – direct horizontal effect, strong indirect horizontal effect, and weak indirect horizontal effect.

Contract Law Theory and The Concept of ‘Ownership’

Abstract Contract law and property law are traditionally viewed to be two separate fields of private law shaped by different principles. Over the past years a theory of contract law thoroughly drawing on the concept of “ownership” has been promoted by common law scholars. It leads at its core to the conclusion that the distinction between absolute and relative rights is irrelevant inter partes and that, therefore, a theoretical division between contract and property cannot be strictly maintained. This touches upon the fundamental distinction between absolute and relative rights raising the question why a contract does not automatically lead to an absolute right with regard to the substance of the promised performance.

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.

Markets and Contractual Fairness

Abstract Contract is the quintessential legal institution of a market economy, but the contemporary philosophy of contract law is dominated by promissory and autonomy theories that tend to treat contract’s role in facilitating commerce as little more than a happy accident. It is thus striking that in his ambitious effort to generate a purely transactional theory of contract law Peter Benson places markets at that center of his account of transactional fairness. His argues that the abstract equality of contracting parties requires equality of exchange, an equality mediated by the just price. Echoing the scholastic tradition, Benson identifies the just price with the competitive market price. We thus have a fascinating example of an anti-functionalist, anti-distributive theory of contract that nevertheless incorporates the market as an important theoretical element. In this essay, I evaluate Benson’s use of markets, placing it within both the broader discussion of markets in contract law theory and in the larger argument that he is making about contract law. Ultimately, Benson justifies the appeal to markets not because of any attractive distributional features of competitive prices but because such prices have a formal structure that satisfies the demands of Benson’s formal theory. It is an ingenious and subtle argument. However, I am not ultimately persuaded. While I think that the rule for unconscionability cases that Benson extracts from his concept of equality of exchange is defensible, I am not persuaded by Benson’s formal approach to the fairness of markets. Rather, I will argue that competitive markets often do not have the formal features that Benson ascribes to them. Furthermore, a key aspect of his understanding of transactional fairness is best understood as resting on an attractive distributional feature of competitive markets rather than on their formal structure.

The Arguments in Justice in Transactions: A Reply to Commentators

Abstract This reply addresses some of the basic questions and criticisms raised by commentators in their interesting pieces on Justice in Transactions. My aim in that book is to work out a public basis of justification for the common law of contract. Given the limits of space, the discussion here is unavoidably selective and incomplete. Within these parameters, however, the article presents, and hopefully clarifies, some of the book’s main arguments that are relevant to the comments, using the footnotes for more detailed responses to the particular points made. These points encompass both methodological and substantive issues. The former center around the nature of public justification and whether the proposed theory of contract law meets its requirements. The substantive issues addressed include the role of promises in contract law, the compatibility between contractual fairness and contractual freedom, and the relation between contract and distributive justice.

Blockchain Smart Contracts: A Socio-Legal Approach

Smart contracts are computer protocols that self-enforce encoded terms. They arguably allow for individual freedom and increased sovereignty from inconveniences. The enthusiasm goes as far as foreseeing that smart contracts will make contractual legal oversight obsolete. However, whereas contract law theory evolved to acknowledge the importance of flexibility and relationality, smart contracts activists defend the opposite direction, arguing for contractual rigidness and denial of social norms supporting complex transactions. This paper departs from this paradox to argue that (i) smart contracts based on existing technology are unlikely to thrive in complex contractual settings, and (ii) contextual analysis is important for LawTech’s propositions. Smart contracts, blockchain, system’s theory, social norms, transaction cost, flexibility, relationality, trust, co-operation, contractual governance

Two Visions of Contract

A Review of Justice in Transactions: A Theory of Contract Law. by Peter Benson.

Sealed and Delivered: A Theory of Unilateral Transfer at Common Law

Some view the sealed instrument as a relic of the common law that is incompatible with modern contract law theory. However, the fact remains that the seal is a valid method to create a binding agreement in Canadian law. This article proposes a theoretical justification of the seal that better places it within contract theory. The author argues that instead of understanding seals as analogous to a consideration-based promise, we should understand seals as analogous to an executed gift. Through this analogy, the seal can be understood as an agreement that creates an immediate and unilateral transfer of rights.