Category Archives: Contract
Hancock and Contreras, ‘Who Speaks For an Industry? Codifying Professional Roles In The Design And Building Construction Sector Through Contracts’
ABSTRACT Contractual template documents enable diverse players within an industry to transact with one another in an efficient and equitable manner. In this article, we evaluate the template agreements that have evolved in the US design and building construction sector over the past 150 years, with the goal of identifying the features of contractual document […]
Kastner and Leib, ‘Recitals And Contract Interpretation’
ABSTRACT Despite longstanding interest in the interplay between text and context in contract interpretation among courts and commentators, recitals – the ‘whereas’ clauses or prefatory provisions at the start of a contract, which operate at the edge of the document’s ‘four corners’ – have yet to be given much scholarly attention, let alone theorized. This […]
Emma Laurie, ‘The Enduring Allure of Neoliberalism: Individualising Responsibility for Housing Costs in the English Private Rental Sector’
ABSTRACT This paper explores how the affordability of rents is addressed in the long-anticipated reform of the English private rental sector (PRS) by the Renters’ Rights Act 2025. The PRS has doubled in size since 2010, acting as a social housing substitute for some households. Its tenants spend the highest proportion of income on housing […]
James Toomey, ‘Zombies, AI, and the “Objective” Theory of Contracts’
ABSTRACT ‘Agentic’ ‘AI’ that can pass the ‘Turing Test’ might behave in ways externally indistinguishable from persons but without our subjectivity or mental states. Under the so-called ‘objective’ theory of contracts, taught as black letter in the common law world for a century, this is purportedly enough for large language models to enter into self-binding […]
Seth Oranburg, ‘The Wrong Plaintiff: Contract Damages versus Network Expulsion and the Collapse of Distributed Governance’
ABSTRACT Courts awarding standard contract remedies can destroy private network governance. In collectively governed trading networks, commercial cooperation often depends on the credible threat of ostracism. That threat is best understood as a club good: excludable because only members benefit from the network’s ability to sanction rule-breakers, and nonrivalrous because one member’s benefit from that […]
Dimarco and Winterton, ‘Future Performance and Proof in Contract Damages’
ABSTRACT A longstanding common law controversy is whether, following a contract’s termination for the defendant’s repudiatory breach, the plaintiff’s entitlement to substantial damages depends upon proving its ability to have performed any outstanding, and now discharged, obligations. This question may arise in various distinct contexts and consideration of the relevant case law reveals that courts […]
Nick Trehan, ‘The Uncertainty of the Criterion of Enforceability in Contracts’
ABSTRACT This paper examines the evolution of the enforceability of contracts across common law jurisdictions. It traces the shift from an objective approach, which focuses on the outward expressions of agreement between parties, prevalent in the early to mid-20th century, to a more subjective and equitable approach employed in the late 20th century, which considers […]
Daniel O’Gorman, ‘Saving the Common Law of Contracts from Politics and Codification: Holmes, Langdell, and Legal Science’
INTRODUCTION In the late nineteenth century, the common law of contracts needed saving. Or so Oliver Wendell Holmes, Jr, and Christopher Columbus Langdell believed. The threat to the common law of contracts was twofold. First, it might become infected by the popular trends in political philosophy. Second, the state legislatures might bring an end to […]
Lusina Ho, ‘The Proprietary Consequences of Rescission in Equity’
ABSTRACT This chapter addresses the doctrinal uncertainty in English law regarding the proprietary consequences of equitable rescission for transfers made under impaired consent. The central claim of the chapter is that equity grants transferors rights of increasing proprietary intensity to protect disputed assets from dissipation during the prolonged process of obtaining an order for rescission. […]
Hwang and Weinstein-Tull, ‘Contract Law and Civil Justice in Local Courts’
ABSTRACT Most American contract law disputes take place in the shadows, unnoticed by commentators, scholars, and casebooks. These disputes – often heard by lay judges in local courts that do not publish their opinions – account for more than 80% of total contract disputes. Using state-level filing data and original interviews with local court judges, […]