Category Archives: Contract
Monateri and Somma, ‘The Fascist Theory of Contract: A Comparative and Historical Inquiry into the Darker Side of Contract Law’
ABSTRACT This paper represents an attempt to discuss and re-assess the scholarly debate on Private Law in Fascist time. Moving from a newer comparison with National Socialism, the Authors look at the strategic devices used to justify a precise concept of law and a selected body of rules. In this perspective Roman Law could be […]
Matt Zwolinski, ‘Are markets coercive?’
ABSTRACT Are markets coercive? Contemporary debate is dominated by two answers. The first, longstanding among defenders of free markets, holds that voluntary exchange is non-coercive by definition: coercion enters the picture only when rights are violated. The second, revived from Robert Hale’s 1923 essay and embraced today by progressive legal scholars and post-liberal conservatives alike, […]
Ewan McKendrick, ‘Contracts, certainty and the Supreme Court’
ABSTRACT The aim of this article is to examine the importance attached by the United Kingdom (UK) Supreme Court to the promotion of legal certainty in English commercial contract law. It does so by examining three recent Supreme Court decisions in which considerations of certainty and predictability played an important role in deciding the outcome […]
Kiener and Patterson, ‘Economic duress as contextual disqualification’
ABSTRACT People often enter contracts under pressure, including economic pressure. Businesses bargain hard, and parties sometimes exploit the fact that others are in financial difficulty. Contract law has long struggled to say when this kind of pressure crosses a line. The problem is how to distinguish legitimate commercial pressure from impermissible economic duress: that is, […]
Monika Leszczyńska, ‘Think Twice Before You Sign! An Experiment on a Cautionary Function of Contractual Formalities’
ABSTRACT Legal scholarship has long maintained that contractual formalities, such as written signatures, serve a cautionary function by protecting individuals from entering into ill-considered agreements. With the rise of digital contracting, however, it remains unclear whether online forms of assent can fulfill this role. In an incentivized laboratory experiment, I compared four modes of contract […]
Mackenzie Custer, ‘Click to Agree: Reassessing Minors’ Persona Rights in the Age of Monetized Social Media’
INTRODUCTION In today’s digital sphere, playdates turn into product placements. A nine-year-old influencer earns more in sponsorships than their parents, yet under contract law, they cannot legally sign their own name. In the modern internet landscape, tension emerges between individuals’ long-established rights in their personas and the contractual realities governing online platforms. Social media networks […]
Malatesta and Smith, ‘Relational contracting and the duty of good faith: Divergent judicial pathways in the UK and the US’
ABSTRACT Networked public service delivery requires trust and flexibility, yet public managers remain constrained by legal contracts designed for hierarchical control. This article advances public management theory by examining how courts in the UK and the US address this governance dilemma through their interpretation of good faith in relational contracts. Using a mixed case selection […]
Xiaoshui Zhai, ‘What a party knows: Rethinking knowledge assessment in automated contracting’
ABSTRACT In contract law, certain rules require a party’s knowledge of specific facts to operate, such as in cases of unilateral mistake. A mistaken party may be entitled to avoid a contract if their mistake regarding the terms of the contract was known to the other party. However, challenges arise when the other party uses […]
Michael Pratt, ‘Mapping the Objective Theory of Contract Formation’
ABSTRACT The objective theory of contract formation is usually presented as straightforward: contractual intention is determined by outward manifestations rather than private mental states. Yet the doctrine is typically taught and discussed through a narrow class of ‘imputed intention’ cases, where a party is held to a contract they did not subjectively intend. This paper […]
David McLauchlan, ‘A Uniform Approach to Contract Formation and Interpretation’
ABSTRACT When we ask the questions ‘is there a contract?’ and, if so, ‘what does it mean?’, essentially the same principles apply in New Zealand as a result of the Supreme Court’s decision in Bathurst Resources Ltd v L&M Coal Holdings Ltd. This represents a departure from the law in other common law countries, notably […]