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Copyright of Via Inveniendi et Iudicandi is the property of Universidad Santo Tomas and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This article articulates a theory of relational contract, as an alternative to traditional freedom of contract philosophy. The law has moved away from freedom of contract to some extent, and it can be criticised on the basis of its unrealistic assumptions and detachment from the typical reality of parties' contracting. Relational contract theory is a possible suitable alternative theoretical framework. It may be useful in relation to contract interpretation. Specifically, it can be utilised to support a broader approach to contract interpretation, with the court focussing on the entirety of the parties' relations, including the written terms and also subsequent performance. It enjoys some support in the United Kingdom and in other common law jurisdictions. It can support the view taken by two justices of the High Court of Australia in a recent contract interpretation decision involving employment contracts. The article favours the approach taken by these justices, rather than that of the majority, whose judgment reflects classic contract law sentiments at odds with the general direction of contract law in comparative jurisdictions. [ABSTRACT FROM AUTHOR]

Copyright of Taiwan Law Review is the property of Angle Publishing Co., Ltd and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

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]

Contractarians view the corporation as a nexus of contracts, constituted by the express or implied consent of each party to or contracting with it. Strong-form contractarianism takes this claim literally and holds that a corporation can be created and sustained by contract alone, thanks notably to the courts' supportive gap-filling role. We argue that this view is undermined by the way courts actually treat implied terms. While courts do attempt to fill gaps and hold parties to their bargains, they do not typically manufacture counterfactual consent by resorting to the hypothetical bargain logic of contractarianism. Even under the most flexible form of contract law, the common law contract, the capacity of courts to imply third-party obligations in multi-party contracts is highly limited. This makes the contractarian reliance on contract and the courts to construct the complex set of multi-party obligations that make up the corporate form implausible. [ABSTRACT FROM AUTHOR]

The introduction of the EU Unfair Terms in Consumer Contracts Directive in the legal system of Cyprus was the first instrument specifically dealing with the problems that arise with standard form contracts and the issue of consent. However, the Directive only generated caselaw approximately twenty years after its adoption, whereas the principle-based approach of the test for unfairness (significant imbalance test and good faith requirement) was interpreted in the common law notion of absence of dishonesty. Hence, Cypriot courts interpreted good faith as "honesty in fact". Under this interpretation, it seems that both procedural and substantive unfairness are not captured under the test. It is understood that whereas the statute codifying the contract law of Cyprus has incorporated the [civil law] will theory of contracts, no tools for the invalidation and scrutiny of terms that may be deemed unfair were provided. The statute placed considerable emphasis on procedural fairness, however, Cypriot courts seemed unwilling to adapt their approach and deal with the problems that standard form contracting poses, failing also to follow the developments in the UK. Thus, even after the adoption of EU consumer law directives, Cypriot courts show an unwillingness to scrutinize the parties' initial allocation of risk, even though such allocation was done in a standardized manner by one party. Despite the mixed character of the legal system, consumer law directives and the introduction of content control can be seen as legal irritants. [ABSTRACT FROM AUTHOR]

Classically a duty to negotiate commercial contracts in good faith has been seen as part of the civil, not the common, law world. Common law commercial lawyers have long resisted the lure of "good faith" as a contractual concept, despite engagement with civil law principles in harmonisation projects, by virtue of membership of the European Union and their use in international conventions such as the United Nations Convention on Contracts for the International Sale of Goods (CISG). This paper will examine whether this situation is changing, focusing on two common law jurisdictions—England and Wales and Canada. In England and Wales and the common law of Canada, case-law in the last 10 years has indicated a movement towards acceptance of express and implied duties of good faith in relation to contractual performance, see e.g. Yam Seng Pte Limited v International Trade Corporation Limited [2013] EWHC 111 (QB) and, most recently, Essex CC v UBB Waste (Essex) Ltd (No. 2) [2020] EWHC 1581 (TCC) in England and Wales; Bhasin v Hrynew 2014 SCC 71 and Callow v Zollinger 2020 SCC 45 in Canada. This paper will examine the extent to which these cases may open the way more generally for a duty to negotiate commercial contracts in good faith. It will examine the reception of these cases and whether they indicate (i) greater acceptance of "good faith" as part of contract law thinking and (ii) a possible extension of good faith into the pre-contractual period. [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]

The law relating to "offer" and "acceptance" is seemingly simple when it comes to stating it, but less than straightforward when it comes to applying. The reasoning in this area of law is artificial, contrived and "backwards." Rather than deductively applying the definitions of "offer" and "acceptance" to real world scenarios, courts seem to be deciding cases first by deliberating upon a host of considerations specific to the domain in which the case arises--and seem to stick the labels "offer" and "acceptance" on to the fruits of these deliberations afterwards. This article seeks to give heuristic short-cuts to anticipate a common law judge's approach to "offer" and "acceptance" cases by focussing on the "tacit knowledge" used by lawyers to negotiate questions arising around these issues. It also seeks to get to the heart of why applying "rules" in this area yields poor results. [ABSTRACT FROM AUTHOR]

One of the most striking differences between the Civilian jurisdictions and the English common law has been the reluctance of the latter to adopt a general principle of good faith in contract. Scots law, however, often seeks to exercise the functions of good faith but does not recognise it as a general principle. In recent years, English law has begun to identify good faith as an implied term in "relational contracts", a concept with sociological and economic origins. This article applies that development to Scotland by exploring the relationship between good faith and the relational contract from a Scots-Roman perspective. It will be shown that the historical sources of Scots contract law, from the Roman reception to the Institutional Writers, are fully compatible with relational contracts. It goes on to consider how a Scots law approach to good faith in relational contracts might orientate itself to the English authorities. [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 study aims to characterize the changes in contract law under the influence of the Covid-19 pandemic in Ukraine and the world. For this purpose, we used systemic, comparative-legal, and formal-legal methods. The paper consists of an introduction, methodology section, bibliography review, results, discussion, conclusions, and references. In the result of the study some distinctive features of changes in contract law under Covid-19 pandemic at the level of national law of Ukraine and some foreign countries were characterized and highlighted. The authors came to the conclusion that changes in contract law are typical for the countries of continental law. Instead, common law states remain resistant to changes in contract law, particularly, the force-majeure application. The reason for this lies in the specific doctrine of the common law countries, as England and the United States. These countries' courts remain unshakable in terms of managing the contracts performance. In contrast, some Asian and European states (including Ukraine) are characterized by dynamic changes in legislation, given the pandemic situation. The paper also discusses similar institutions like hardship and frustration of purpose, which are both applicable in continental and common law countries. [ABSTRACT FROM AUTHOR]

In Great Peace Shipping v Tsavliris Salvage, the English Court of Appeal rejected the equitable doctrine of mistaken assumptions, arguing that the doctrine lacks a principled foundation. Defenders of the doctrine appear to agree that the doctrine lacks a coherent animating principle, but they think that its open-endedness is an argument in its favour. Against both the critics and the defenders, this article argues that the equitable doctrine of mistaken assumptions is a principled doctrine, one that protects individual self-determination by setting aside a contract that, due to a mistake about the quality of the thing contracted for, serves the purposes of one of the contracting parties but none of the other's. This defence of the equitable doctrine may seem to be an argument for replacing the narrow common law doctrine of mistaken assumptions with the equitable one, but I argue that it is not. The common law and equitable doctrines of mistaken assumptions are founded upon distinctive conceptions of human freedom, and each doctrine understands the normative significance of mistake in a manner suitable to the conception of freedom underlying it. Moreover, these conceptions of freedom are each incomplete on their own; they require each other for the vindication of their own claims to be conceptions of freedom. The English Court of Appeal was therefore wrong to conclude that the law of contracts must choose between the doctrines of common law and equitable mistaken assumptions; on the contrary, a law of contracts respectful of the freedom of its subjects requires both. [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]

Intoxication as a ground to set aside a contract is not something that has proved to be easy for the law to regulate. This is perhaps not very surprising. Intoxication is a temporary condition of varying degrees of magnitude. Its presence does however raise questions of contractual autonomy and individual responsibility. Alcohol consumption is a common social activity and perceptions of intoxication and especially alcoholism have changed over time. Roman law is surprisingly quiet on the subject. In modern times the rules about intoxicated contracting in Scottish and English law is very similar. Rather more interestingly the law in these two jurisdictions has reached the current position in slightly different ways. This history can be traced through English Equity, the works of the Scottish Institutional writers, the rise of the Will Theory, and all leavened with a dose of judicial pragmatism. [ABSTRACT FROM AUTHOR]

A legal response to the liability deficits inherent in global value chains, the new standard of economic production, could be modelled on legal responses to the liability deficits of earlier transformations of production. One example is provided by the rise of product liability law in the 20th century. In the wake of centralized mass production and fragmented distribution chains, manufacturers and users of goods were increasingly separated from one another not only physically but also from a legal perspective. Law responded by developing causes of action that overcame contractual and corporate boundaries and allowed users of defective goods effective recourse towards manufacturers with whom they otherwise might not have had a legally relevant relationship otherwise. Similarly, in today's global value chains a central problem is the lack of a legally relevant relationship between lead firms responsible for organizing and governing production and those harmed by their various tiers of subsidiaries, suppliers and subcontractors. Current approaches to developing such a legally relevant relationship, such as debates over a duty of care based on the common law tort of negligence, are comparable to early developmental phases of product liability law. Under product liability, these early developments were found insufficient for guaranteeing the rights of injured parties, as also seems to be the case in relation to global value chains today. I compare law's responses to these two transformations of production and propose modelling lead firm liability for inadequate value chain governance ('production liability') on the current, more advanced phases of development of product liability law. [ABSTRACT FROM AUTHOR]

The concept of good faith encompasses the notion that all parties to a contract owe a duty to each other beyond those expressly provided by the terms of the contract. Good faith is a popular concept in civil law countries whereby good faith is clearly included in the civil law codes. However, good faith is gaining recognition in common law countries as well. Common law judges and scholars are divided concerning the desirability of qualifying the concept of good faith into Contract law. The objective of this paper is to analyse common law judges and scholars' perspectives on the application and interpretation of good faith. The paper is mainly a library-based research which uses a qualitative approach to analyse data. The findings show good faith had lately influenced common law, therefore, there is a higher chance for good faith to be a recognised and accepted as one of the legal principles of common law. [ABSTRACT FROM AUTHOR]

The development of Indonesian contract law has been influenced by enacment of new law, court verdicts and legal practices. It has been influenced by civil law and common law systems applied in other countries as well. The enacment of Consumer Protection Act strenghtens position of consumers against profesional seller. The Basic Agrarian Law and its Implementation Laws improve certainty in ownership of land. Courts have recognized, the doctrine of undue influence, acceptance by conduct, but they have not recognized pre contractual liability and have not applied the doctrine of unjustified enrichment in disputes regarding illegal contract. As practical matter, the integration clause under common law system stipulated in contract governed by Indonesian law, whereas Internasional Convention on Sale of Good regarding this issue adopts civil law system.

In this article, Professor Steve Hedley offers a Common Law response to he recently published arguments of Professor Nils Jansen on the German law of unjustified enrichment (as to which, see Jansen, 'Farewell to Unjustified Enrichment' (2016) 20 EdinLR 123). The author takes the view that Jansen's paper provided a welcome opportunity to reconsider not merely what unjust enrichment can logically be, but what it is for. He argues that unjust enrichment talk contributes little of value, and that the supposedly logical process of stating it at a high level of abstraction, and then seeking to deduce the law from that abstraction, merely distracts lawyers from the equities of the cases they consider. [ABSTRACT FROM AUTHOR]

Under Directive 86/653/EEC on the co-ordination of the laws of European Union Member States relating to self-employed commercial agents, commercial agents have an obligation to act 'dutifully and in good faith' (the Obligation). This article considers the impact that this general good faith clause has had upon the UK legal order. It first analyses the Obligation, assessing its scope, function and content. It then reviews the choices made by the UK legislature in implementing this duty and scrutinises the manner in which it has been construed and applied by UK courts, as well as commentators. Finally, it charts the areas of the pre-existing common law agency rules that are affected by this imported notion and appraises the resulting alterations to the positive law. [ABSTRACT FROM AUTHOR]

Good faith is a principle prominent in civil law countries but less so in common law countries, and which allows courts to deviate from black letter law. It provides them with flexibility to change the outcome of a deductive legal decision if they regard it as absurd. The principle of good faith thus empowers the judiciary to deviate. It can be used for an indefinite number of cases and might lead to almost all conceivable legal consequences. For instance, the judge can invalidate the contract, change the price, suspend or change a clause in the contract, or grant injunctive relief, compensation of damages, the disgorgement of profits or a removal claim. We argue that if the principle of good faith is used to develop contract law into an instrument for redistributing wealth in favor of poor parties, this can destroy the concept of contract as a social mechanism for generating mutual gains for parties, which might lead to unwanted economic consequences in terms of efficiency losses. We argue that the principle of good faith must be carefully and reluctantly used to reconstruct the fully specified contract and that well-informed judges, who understand the factual environment of a contract well should ask how fair bur self-interested parties would have allocated the risk in a pre-contractual situation. If the courts restrict the application of the good faith principle to these functions, this provides elasticity that otherwise would not exist if courts would strictly use the rules laid down in black letter law. Moreover, it saves transactions costs and is therefore in line with economic reasoning. We look at the most important Turkish cases and find that the Turkish Supreme Court following Continental European doctrines of good faith actually uses this principle to curb opportunistic behavior of parties and not to achieve redistribution from the rich to the poor by way of interfering into contract law. [ABSTRACT FROM AUTHOR]

The aim of this paper is to introduce and analyse the concept of misrepresentation under the English contract law. In this regard, the paper primarily deals with the distinction between a term and a representation, key elements of misrepresentation, types of misrepresentation and remedies available to misrepresentees once the misrepresentation has been established. Furthermore, the author subsequently also presents a brief analysis of the Slovak contract law in order to identify any statutory provisions which could be applied to situations where a contract governed by the Slovak law contains representations and outlines what remedies are eventually available in situations where such representations later turn out to be false. [ABSTRACT FROM AUTHOR]

The article focuses on the mortgage law and prepayment penalties in Canada. Topics discussed include the statutory approach to mortgages in Ontario, the common law and practices of lenders, and an overview of penalty provisions and the due-on-sale clause. Also mentioned is the protection provided to borrowers with regards to mortgage interest penalties.

Contractual disputes concerning interpretation can be the most intractable of all contractual disputes and their outcome is notoriously difficult to predict. The interpretation of contradictory or ambiguous contractual provisions may often be necessary in order to determine, inter alia, the effect of the parties' actions upon the performance of the contract and what the substantive contractual obligations actually are. Contractual interpretation in civil law and common law jurisdictions proceeds from fundamentally different perspectives, particularly when viewed in light of a recognised international private law convention, the CISG . Comparing and contrasting the common law and the CISG shows the latter to be the product of a diplomatic conference comprising 62 States and eight international organisations and not a series of ancient pronouncements of English judges who developed commercial law through 19th century sensibilities. The CISG and the common law are, however, not poles apart but the CISG was born because commercial trading, commercial agreements and the parties involved have become increasingly internationalised, complex and sophisticated. [ABSTRACT FROM AUTHOR]

The present paper proposes the creation of a model for the harmonisation of contract law in Latin America. For this purpose two conditions are relevant: the factual assessment of the phenomenon of the disassembling of traditional contract law and the assessment of the creation of a common Latin American legal culture. Based on them, a singular method of harmonisation can be constructed, the scope of which is to reduce legal dispersion in Latin American contract law. [ABSTRACT FROM AUTHOR]

While rescission and restitution are closely related, they are not identical concepts. The election requirement in rescission is a key feature that distinguishes that process from a claim for ‘simple’ restitution. This article considers the election requirement and concludes that it need not be restricted to its contractual operation within the law of unjust enrichment. Election could also play an important role in determining the availability of proprietary restitution for unjust enrichment. [ABSTRACT FROM PUBLISHER]

Copyright of Revista de Derecho Privado (0123-4366) is the property of Universidad Externado de Colombia, Departmento de Derecho Civil and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Estudios Socio-Jurídicos is the property of Colegio Mayor de Nuestra Senora del Rosario and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)