Category Archives: Contract
Enrico Baffi, ‘Modular Default Rules: Hadley v Baxendale and the Theory of Contractual Defaults’
ABSTRACT The economic theory of contracts treats the rule of Hadley v Baxendale as the paradigmatic example of a penalty default rule: a rule deliberately not wanted by the majority of contracting parties, conceived for the sole purpose of forcing the informed party to disclose private information through opt-out. This article argues that this account […]
Dagan and Gergen, ‘Autonomy, Implication, and Interpretation’
ABSTRACT This Article develops a liberal theory for one of the most discussed topics of contract law (its rules of interpretation) and one of the most neglected (implication). It considers these topics in tandem because they both address contractual obligations that ostensibly flow from the parties’ own choices. We reject the view which misrepresents the […]
Nathan Oman, ‘A Defense of Proportional Breach of Contract’
ABSTRACT The victim of a breach of contract can either sue or exercise self-help by withholding performance. However, the material breach doctrine perversely limits the self-help option in precisely those cases where the litigation response is likely to be unavailing. The result is a situation where contracts are likely to be systematically underenforced. This might […]
Sherzodbek Omonov, ‘Who Clicked Accept? Algorithmic Error, Evidentiary Opacity, and the Allocation of Contractual Risk Across Legal Systems’
ABSTRACT As AI programs are becoming sophisticated in contract negotiation, this paper primarily focuses on AI-negotiated contracts and the challenges they bring to the traditional contract law doctrine. It further explores how concepts around intent, offer, and acceptance handle the novel challenges AI programs come with. Building on this, the paper raises another important question […]
Kantorowicz-Reznichenko, van Heusden and Kantorowicz, ‘Consumers’ Rights in the Shadow of the Brand: A Conjoint Experiment on the Valuation and Trade-Offs of Contractual Rights’
ABSTRACT With the rise of standard contracts, tensions persist between protecting consumers from unfair terms and preserving freedom of contract. A key concern is that consumers may waive legal rights, often unknowingly, particularly when dealing with trusted brands. To address this, we conducted a conjoint experiment with a representative US sample to evaluate how consumers […]
Monika Leszczyńska, ‘The Egocentric Reasonable Person: Whose Norms Decide what is Reasonable in Contract Law?’
ABSTRACT When contract law invokes a reasonableness standard, whose standard applies – and what kind? Doctrine prescribes external benchmarks – industry custom, community expectations – rather than individual moral judgment. Two pre-registered experiments (N=2,342) test which benchmark laypeople apply across twenty-five contractual scenarios. Personal injunctive norms – what individuals believe one ought to do – […]
Kevin Davis, ‘Inequality and the Regulation of Contracting’
ABSTRACT A long line of scholars and jurists have proposed to use laws that regulate contracting to combat economic inequality. This chapter examines the justifications that have been offered in support of these proposals and how they might be implemented in various areas of contract law. The discussion emphasizes that law may influence inequality by […]
Felipe Jiménez, ‘Against Deregulation’
INTRODUCTION In ‘Deregulating Contracts’, Alan Schwartz and Simone Sepe have made an important and ambitious contribution to contract theory. In their view, we have been way too conformist about contract law. Their argument is that both welfarist and deontological considerations suggest our law of contracts should be radically reformed. More specifically, they argue that contract […]
Gregory Klass, ‘Voluntary Legal Obligations: From Contract to Cohabitation’
ABSTRACT Although cohabitants often live together in ways indistinguishable from those who are married, the law treats them differently than it does spouses. In Toward a Private Law of Intimates’ Obligations, Emily Stolzenberg asks why, identifies the need for reform, and brings the law of cohabitation into conversation with recent work in private law theory. […]
Helen Fielder, ‘Bitcoin, Property or Money? Reframing the Debate before the High Court’
ABSTRACT The pending High Court appeal in Poulton v Conrad raises one of the most significant questions yet considered by an Australian court concerning digital assets: whether Bitcoin constitutes property at common law and, if so, whether traditional proprietary remedies such as detinue and conversion are available. The appeal has attracted competing approaches. The appellant […]