Search

This short piece introduces a working game designed for legal problem solving where students use LEGO® to create visual representations of legal analysis. We explain its structure and rationale which is based on the LEGO® SERIOUS PLAY® method and our own five-stage guided approach to problem solving in contract law. We comment on LEGO® models built by students during workshops exploring issues in contract law. In their feedback, students reported that the method helped them to understand contract law doctrine, navigate problem questions and think about their analysis of legal issues. We suggest that, with further investigation, the method can be a viable pedagogical technique to assist with the identification and understanding of a wide range of legal information, and to discern relevant connections between doctrine and fact patterns to achieve successful abstraction, application, and ultimately the construction of complex legal analysis. The method also builds confidence, social interaction skills and reinforces competence in legal problem solving. [ABSTRACT FROM AUTHOR]

Contract law was one of the main subjects discussed in the early modern legal genre of differentiae iuris civilis et canonici ('differences between civil and canon law'). Similar topics were covered in both late medieval and early modern differentiae – hence this genre offers a good opportunity for comparative historical research dedicated to selected topics of contract law (such as those discussed here: the actionability of bare agreements, stipulation for the benefit of a third party, overreaching in contract formation and the lease of a house to a scholar). An examination of the sources proves that the authors of early modern differentiae applied the comparative method in their works. This involved the presentation of sources and rationales from the two bodies of law, the interpretation of sources and arguments in favour of the solutions offered, references to the then-current legal literature and practice and most importantly the preferred method of reconciliation for conflicting laws. [ABSTRACT FROM AUTHOR]

The Covid-19 pandemic led to a surge in the use of video-conferencing services offered by Zoom, which has continued in post-pandemic times. This paper sheds light on Zoom's contractual terms related to governing law and jurisdiction, and its applicability in Emirate and French laws. It attempts to answer the question about the circumstances in which the local courts will take jurisdiction over a dispute, notwithstanding that the parties agree that such disputes will be resolved in the jurisdiction stated in the clause. It also provides an analysis of the exclusion and limitation of Zoom's liability clause. Specifically, it looks at the effectiveness of the limitation of Zoom's liability in Emirate and French laws. The study emphasizes the need for policy and legislative framework to address this new area of law and technology to protect users from contractual terms in e-services agreements since video conferencing services continue to thrive and drive growth in the post-pandemic world. [ABSTRACT FROM AUTHOR]

Recent years have witnessed significant interest in demystifying the implication of contract terms. Whilst the discussion thus far has elicited some answers, the subject remains notoriously 'elusive'. This article advances discussion in the field. It argues that underlying recent debates are deeper issues that must be brought to the surface. These include theoretical incoherence regarding the nature/purpose of implication tracing back to The Moorcock (1889), and analytical indeterminacy in applying the established 'tests' for implication, as courts vary between conflicting instrumental and non-instrumental approaches. Feeding both issues is inconsistent linguistic use of core terminology. This article helps demystify implication by distilling two 'theses' well-supported by the authorities, and elaborating their details and significance. Whilst the divided state of the authorities precludes instant resolution, the article further contributes a reflection on possible ways forward, including a new possibility raised here that implication may comprise two distinct exercises matching the theses described. [ABSTRACT FROM AUTHOR]

In the common law tradition, it has long been the case that a contract not backed by consideration is no contract at all. But this rule has been slowly washed away in various contexts, especially contract modifications, in various Commonwealth jurisdictions. In response to these developments, we argue that the consideration requirement has outlived its purpose and that it is time for it to be formally retired. We identify its purpose as ensuring fairness, voluntariness, and the integrity of consent, and we demonstrate that a collection of doctrinal tools have become increasingly available in recent years to fulfil this purpose. We conclude by discussing some of the harms that the consideration requirement causes. Since it does no good and causes some harm, it is time for it to go. [ABSTRACT FROM AUTHOR]

During the nineteenth century, legal writers began to put the law of contract into a more rationale and ordered framework. This approach reached its apotheosis in the classical law of contract, which retains some influence in modern times. At its core was the belief that contracts were formed by a meeting of wills – that is, contracts were based on consent. Historically, however, there are instances where the law refused to enforce a contract even if the parties had seemingly freely consented to it. Two major examples were contracts that were against morality or public policy. Both of these categories evolved in the nineteenth century. They came to be seen as increasingly anomalous and restricted. They did not, however, disappear altogether. [ABSTRACT FROM AUTHOR]

A contract written in natural language describes the parties' rights and obligations. It cannot, however, 'do' anything. It produces legal not physical effects. Traditional contracts do not instruct computers to perform any operations. Contracts expressed in code could. The question arises: can we convert contractual documents from being passive embodiments evidencing agreements into active files containing computer instructions? The ability to guarantee that contracts are performed as agreed, an idea underlying 'smart contracts,' depends on the ability to express obligations in code or, more specifically, on the ability of code to express obligations exactly as agreed. Not every obligation can, however, be encoded - be it due to its very nature or to the limited expressiveness of programming languages. Highlighting the interplay between form and substance, this paper presents the complexities involved in expressing contracts in code. Before contemplating the technical aspects of 'smart contracts' we must confront some preliminary questions: what are we trying to encode – and for what purpose? Can the entire contract be expressed in code? Should we focus on translating legal prose into code or on encoding specific tasks that serve to discharge obligations? This paper provides the groundwork for more ambitious projects in the area of 'smart contracts.' [ABSTRACT FROM AUTHOR]

This paper traces the Canadian doctrine of unconscionability's distant voyage in Uber Technologies v Heller 2020 SCC 16 from the familiar waters of the English 'unconscionable bargains' family of doctrines, found in various common law jurisdictions. Since the 19th century, those jurisdictions had included Canada. However, in this important decision of the Supreme Court of Canada, the position of the doctrine shifted significantly. Its movement can be identified as towards the American doctrine of unconscionability, a distinct doctrine not part of the English family, based rather on §2-302 of the Uniform Commercial Code. Court-watchers in the United Kingdom and other Commonwealth jurisdictions wondering whether this reinterpretation of unconscionability might represent a model for progressive reform should understand why it does not. Adrift between two doctrines with different purposes, it is insufficiently suited to serve either. Meanwhile, it may disrupt business reliance on standard form contracts, and cause tremendous contractual instability. [ABSTRACT FROM AUTHOR]

The notion of employment as a relational contract has received much academic attention and is gradually being recognised by common law courts in judicial decision-making. This article focuses on a primary question: what impact, if any, could that relational classification have on the remedies available where an employment contract is breached? Given that this question has not yet been considered judicially, and only mentioned in passing in academic writing, this article seeks to probe the question by traversing existing judicial and academic understandings of employment contracts as relational in nature. It then considers the potential impact that the relational classification may have on the remedies available to employees whose employment contracts have been wrongfully terminated by their employer. Three options are put forward in respect of the potential impact on the remedy available for breach, each of which is underpinned by a combined theoretical and doctrinal analysis. First, it is suggested that awards for specific performance may become more prevalent. Secondly, there may be a place for a special category of relational damages. Finally, it is acknowledged that the relational classification may end up having no impact on the available remedy at all. [ABSTRACT FROM AUTHOR]

Covid-19 has created an unexpected global pandemic which has brought unprecedented and wide ranging restrictions from governments around the world. One result of these events has been profound disruptions to individual contracts. This article considers the nature and history of the doctrine of frustration in English law. The lack of certainty in ascertaining whether or not an event is a frustrating one is examined. A consideration of the particular problems innumerable parties will face in attempting to decide whether or not their contract has been discharged by frustration as a result of Covid-19 and the regulations designed to curtail the virus are made. The article concludes with an overview of the Law Reform (Frustrated Contracts) Act 1943. [ABSTRACT FROM AUTHOR]

The literary agent is a recent addition to the publishing industry, yet in a relatively short space of time has become instrumental in the production of literature. This article examines the origins and development of the A.P. Watt literary agency to explore how it became a dominant organisation in the late nineteenth century. It analyses how its founder Alexander Pollock Watt, despite being met with resistance, gained legitimacy to be accepted by authors and publishers. Through an analysis of historical sources this article argues that by using contract law, Watt was able to disrupt existing business practices. [ABSTRACT FROM AUTHOR]

One of the most significant ways that the common law regulates employment contracts is through the implication of terms by law to fill gaps. This article traces the origins and current status of a selection of key terms implied by law into both English and Australian employment contracts. The majority of those terms have been derived from a combination of equity, tort, and the former master and servant regime. At their inception in English employment law, most were recognised as 'norms' in the master and servant regime. Only after the employment relationship was recognised as contractual did these norms become accepted as 'terms implied by law', both in England and Australia, yet they lacked proper justification as to why. This re-characterisation is problematic: it avoids adequate consideration of whether such terms are truly necessary in all modern employment situations. [ABSTRACT FROM AUTHOR]

Modern 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. [ABSTRACT FROM AUTHOR]

Speculation in commodity derivative markets has been linked to the causation of the 2007-11 global food crisis. Derivatives have also been implicated in the causation of the global financial crisis. Much of the legal scholarship on derivatives is concerned with how best to regulate their use. Other work has pointed to the role of transnational actors, such as the International Swaps and Derivatives Association (ISDA), in facilitating the growth of the global derivatives market. What is missing in this scholarship is an account of how the norms of contract law have been altered, extended, and even distorted to create a new generation of financial assets linked to food prices. In this paper, I begin a project of examining how the trade in commodity derivatives has disrupted some of the established principles of contract law, and I reflect on the significance of my findings for the debate about derivatives regulation. [ABSTRACT FROM AUTHOR]

If one is to believe the popular press and many “technical writings,” blockchains create not only a perfect transactional environment but also obviate the need for banks, lawyers and courts. The latter will soon be replaced by smart contracts: unbiased and infallible computer programs that form, perform and enforce agreements. Predictions of future revolutions must, however, be distinguished from the harsh reality of the commercial marketplace and the technical limitations of blockchains. The fact that a technological solution is innovative and elegant need not imply that it is commercially useful or legally viable. Apart from attempting a terminological “clean-up” surrounding the term smart contract, this paper presents some technological and legal constraints on their use. It confronts the popular claims concerning their ability to automate transactions and to ensure perfect performance. It also examines the possibility of reducing contractual relationships to code and the ability to integrate smart contracts with the complexities of the real world. A closer analysis reveals that smart contracts can hardly be regarded as a semi-mythical technology liberating the contracting parties from the shackles of traditional legal and financial institutions. [ABSTRACT FROM PUBLISHER]

Legal drafting is a vital skill for lawyers and thus it is important for law students to be exposed to drafting throughout their degree. One of the first year courses most suited to this exercise is contract law. This paper discusses the inclusion of a drafting exercise as part of the contract law assessment over four years in terms of the authenticity of the assessment task and feedback from students about the exercise. A sample exercise is included in the paper. These exercises required students to draft clauses to be inserted into a contract or draft a short contract and this work demonstrated an application of the material being covered in class. Initially, this assessment was set as a largely independent exercise with students being directed to relevant resources. It was found that additional scaffolding was needed and each year more extensive resources were provided. Although the students who participated in the survey were predominantly students who had passed the course, the majority each year believed that it was a useful exercise, of value for their future careers and of more practical relevance than other forms of assessment. [ABSTRACT FROM PUBLISHER]

Materials are a critical element within the construction industry yet- the conditions and legality surrounding their ownership remains an area of uncertainty. The difficulty in ascertaining ownership is often found in the instances of payment, delivery and complex contractual relationships. Additionally, the nature of the construction industry whereby raw materials are purchased within a supply chain and are incorporated into the fabric of buildings or goods often creates further confusion. The importance of ownership is most apparent in the instance of disputes or insolvencies, both of which are regular occurrences within the construction industry and in the management of a project regarding cash flow and programme. To inform the position and stance of Scots Law in relation to ownership of materials it is necessary to evaluate current law regarding ownership of materials in Scotland through the undertaking of a literature review which establishes the prevailing legal structure. Conclusions and recommendations propose that parties of a construction contract, for which Scots Law is applicable, are aware of current law surrounding the intricate matter regarding ownership of materials in Scots Law. [ABSTRACT FROM AUTHOR]

Despite attempts to reform the law to eliminate hierarchies that subordinate groups of people, the law usually ends up re-instantiating those hierarchies. This "preservation through transformation" phenomenon occurs consistently, over time and across legal disciplines. Karl Llewellyn's efforts at drafting Article 2 of the Uniform Commercial Code are no different. Llewellyn attempted a paradigm shift in contract formation when he sought to decouple contract law from its formalistic roots and bring it back in touch with reality. But in so doing, the lawin- action strand of Legal Realism ended up working at cross-purposes with the other, critical strand of Realism. As a result, Llewellyn's paradigm shift only served to exacerbate structural problems built into the contract law system. This essay attempts to explain why Llewellyn's efforts to reform contract law have had such serious long-term but unintended consequences for the modern contract law system. It does so in an unorthodox way. Instead of drawing from traditional contract-law scholarship, the essay imports insights from two seemingly unrelated fields - civil rights law and social philosophy. The essay's central thesis is that revising existing doctrine will rarely if ever result in meaningful change in the modern contract law system. In fact, doctrinal reform will almost always be counter-productive, as reforms from within will only rebuild power, advancing and further protecting the interests of the privileged. Understanding and revealing this trap is essential to finding a path to lasting change. Contrary to traditional contract-law critiques, meaningful reform will only occur by understanding power - who has it, why they have it, and how they keep it. [ABSTRACT FROM AUTHOR]

The article focuses on historical analysis based on two interpretive frameworks of modern law and literature. It informs that the first interpretation reveals that the law and literature provide same conceptual and ideological developments. It discusses the other interpretation, which states that law is associated with rule, reasons and hegemony while literature is associated with plurality, emotion and empathy.

Electronic resource contract law language presents many problems for both librarians and publishers. For librarians, problems generally involve interlibrary loan permissions and perpetual access/archival rights. For publishers, problems involve breach of contract and definitions of authorized users and sites. Through a description of the basic license elements and practice with a sample license, problems diminished in this session. [ABSTRACT FROM AUTHOR]

Federal regulations governing human subjects research do not address key questions raised by incidental neuroimaging findings, including the scope of a researcher's disclosure with respect to the possibility of incidental findings and the question whether a researcher has an affirmative legal cuty to seek, detect, and report incidental findings. The scope of researcher duties may, however, be mapped with reference to common law doctrine, including fiduciary, tort, contract, and bailment theories of liability. [ABSTRACT FROM AUTHOR]

Construction professionals owe duties of care and skill to clients in both contract and tort. Usually the principal or the corporate employer takes responsibility for employees' negligence under the principle of vicarious liability. But analysis of court judgments from England, New Zealand, Hong Kong and Florida (USA) reveals circumstances in which professional employees might attract personal liability to the firm's client, despite an apparent lack of contractual or tortious relationship with that client. Professional employees of unincorporated businesses might be more exposed to this risk than employees of incorporated businesses. Factors causing professional employees to be uninsured include lack of contractual privity between client and employee and absence of compelling rules or statutes. Professional employees seem unaware of these risks. Increased awareness of these risks could encourage employees to take out insurance but clients will resist paying twice to insure the negligence of both principal and employee. [ABSTRACT FROM AUTHOR]

Working relationships between vendors and academic libraries have extended from a traditional one of customer and bookseller to the testing of vendor-developed software. This extension has occurred since 1980, the last quarter century. What has changed since 2000 is the addition of tests of vendor/client interface informed by enterprise software that completely alters methodologies for accommodating library requirements for book supply, MARC record supply, and electronic invoices and purchase orders. This paper will examine the technical, administrative, and legal considerations now relevant to beta testing of vendor software by library staff and offer charts and checklists that may make these projects more easily comprehended. [Copyright &y& Elsevier]

Over the past four decades, the transnational business community has successfully built a private system of transnational governance: the new Lex Mercatoria . The actors who operate this system – firms, their lawyers, international arbitrators, and legal academics – have evolved, and use, ‘a-national’ principles of contract and a system of private ‘courts’ to organize and regulate cross-border commercial exchange. National legal systems have adapted to the Lex Mercatoria , thereby enhancing the latter's autonomy, and the EU has begun to move in the same direction. [ABSTRACT FROM AUTHOR]

This paper discusses changes in the ownership models of intellectual property and how they are shifting the way libraries provide information. The author argues that the main change in intellectual property is the way that owners distribute information, not in the sense of new media, but in the sense of new legal constructs governing distribution. The article discusses the impact on libraries of a move toward viewing information as a service that must be licensed, not bought. The potential effects of protecting intellectual property with contract law instead of copyright and property law are detailed. [ABSTRACT FROM PUBLISHER]