Search

The article revisits the role of unilateral determination of contract terms under Spanish Law. In the tradition of ius commune, the object of the contract had to be determined from the outset, and leaving terms to the later determination by one party was seen as contradictory with the requirements of certainty of price and object. Civil codes in the Latin tradition followed that pattern, but nowadays, the Spanish Civil Code is perhaps the only one who remains faithful to this approach. In other European and Western legal systems, and in international instruments on Contract Law, the starting point is quite different. It is acknowledged that there are good reasons for parties to leave contracts incomplete, and to rely eventually on the unilateral determination of open terms by one of them. Thus, most legal systems leave ample room for unilateral determination of terms, subject to judicial control to curb abuses in the exercise of unilateral powers. The article shows strong reasons, grounded both on legal theory and Comparative Law, to promote a change of perspective in Spanish Law, even under the application of arts. 1256 and 1449 of the Spanish Civil Code. It is argued that the legitimate space for unilateral determination of contract terms is larger than currently perceived, based on arguments linked to other provisions in Spanish Law and some avenues explored already by case law. [ABSTRACT FROM AUTHOR]

Based on the provisions of article 1169 of the Civil Code, the parties are free to conclude any contract; however, based on the principle of the mandatory force of contract, the parties are held to execute the contract as signed. According to article 1549 of the new Civil Code, in case the debtor fails to execute its obligations accordingly, the creditor is entitled to invoke one of the following remedies: execution by equivalent; foreclosure; rescission or termination of contract or the reduction of the debtor's performance or the use of any other legal mean available in order to achieve his right. Rescission can manifest under any of the two forms: judicial and extrajudicial. Extrajudicial rescission also has two forms: unilateral rescission and conventional rescission. Unilateral rescission operates based on the unilateral declaration of rescission. At first sight, the creditor's possibility to terminate the contract by rescission presents some practical issues regarding the conditions when it can be invoked, the form of the declaration, its legal effects (namely the real possibility of reinstating the parties in their previous position) and the statute of limitation of the right to invoke rescission. All these aspects were subject to our analysis, thus attempting to find the practical solution for enforcing this highly anticipated solution in the new social-legal context. [ABSTRACT FROM AUTHOR]

The article discusses the history, doctrine and theory of unilateral contracts in the U.S. It states that the degree in which the insurance policy is mainly uncommon even within the zoology of traditional contract characterization. It suggests that the common law should qualify insurance policies as bilateral agreements and assess their terms and conditions. Moreover, it notes that could should reject the presumption that insurance contracts are unilateral, rather should persist being faithful to contract law's preferences.

The article discusses the reasons on the importance of impact-based approach in the implementation of the Article 81 and 82 of the European Commission (EC) competition law. It states that the approach prohibits agreements and unilateral conduct of dominant companies when they limit competition which harms consumers. It notes that the efficient allotment of the evidential burden of proof must be adequate to deal with the concerns related to the access of evidence showed by the defendant.

The article discusses the importance of agreements and contracts relative to the National Labor Relations Act in the U.S. It focuses on the National Labor Relations Board's (NLRB) handling of alleged unilateral actions and clear-cut waiver analysis, and analyzes the advantages of contract-coverage analysis of waiver. Some courts view the approach as better-reasoned because it does not provide for an extra-contractual means by which a party can alter what was already addressed and established in the contract.

Presents the preliminary provisions of the European Code of Contract. Definition of a contract; General and specific rules relating to contract; Contractual autonomy; Rules related to unilateral acts; Contractual capacity and essential requirement of contract.