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The article provides a critical review of the sources of Roman law regarding negative obligations. The author indicates that in the classical definition of the content of the obligation of the Roman jurist Paul (D. 44.7.3 pr., Paulus 2 inst.) the concept of «abstaining from actions» is absent, but the same Paul indicates that the concept of «doing» (facere ) includes also «to abstain» (abstinere) (D. 50.16.189, Paulus 34 ad ed). Therefore, it can be stated that obligations with a negative content were recognized in classical Roman law. However, the author emphasized that negative obligations in Roman law, as a rule, did not have an independent meaning, but appeared in additional conditions to the main contractual obligation and were not typical. As typical obligations, the article analyzes the agreement on non-alienation (pactum de non alienando), the agreement on not filing a lawsuit (pactum de non petendo) and the agreement on not providing a guarantee for eviction (pactum de non praestanda evictione). In Roman law, the non-alienation agreement mostly accompanied sales or pledge relations. Moreover, the violation of the non-alienation agreement did not result in the invalidity of the sale. The sale of the subject of pledge carried out under prohibition resulted only in the liability of the party who committed such a violation. In modern law, the agreement on non-alienation of the subject of the pledge has been transformed into a legal prohibition of the alienation of the pledged property without the consent of the pledgee. A non-suit agreement was an informal agreement under which the creditor undertook not to file a claim against the debtor at all or for a certain period of time in the event of his non-fulfillment of the obligation. Violation of this agreement had only a procedural effect: the defendant could raise a procedural objection (exceptio) that an agreement not to file a lawsuit had taken place. The agreement on not providing a guarantee for eviction reduced the responsibility of the debtorseller for seizing of the thing from the buyer on the grounds that had existed before its sale. According to the claim from the purchase, in case of eviction of the thing from the buyer, the seller had to be liable in the amount of damages. In case of concluding an agreement not to provide a guarantee for eviction, the seller was liable only in the amount of the purchase price of the item. [ABSTRACT FROM AUTHOR]

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]

Contracts alter legal relationships between parties based on mutual agreement and law. One of the most significant impacts of ownership transfer contracts is immediate transfer of ownership to the other party. However, in a few exceptional cases, such as suspended conditions, time options and conditional sales, the transfer of ownership begins but remains fragile and unstable. The unique nature of legal relationships in these cases requires individual analysis. Ownership should not be disregarded, and despite its instability, ownership and its benefits must be explained clearly. This article examines instances of unstable ownership in Imami jurisprudence and Iranian law. The article argues that the creation of an unstable contract in this form is conceivable and in accordance with the rules. However, the effects of unstable status of a contract depend on the nature of each contract and its instability. [ABSTRACT FROM AUTHOR]

Real servitudes are property rights in foreigners' things (iura in re aliena), in which the titleholder uses others' property to benefit his property. This research aims to analyse the creation of the right of real servitude based on contract as legal title. The analysis specifically examines the provisions of the law of property and other real rights of Kosovo no. 57/2009 and the law on obligation relations of Kosovo no. 16/2012 that do not provide enough specification and clarifications for the content and this type of contract. The isolated analysis only in the provisions of Kosovo law is insufficient for clarification without comparison with the legislation of other countries. Therefore, the Kosovo law is compared with the civil codes of France, Austria, and Germany, aiming to identify similarities, differences, and legal concepts. The work is based on a literature review and normative, comparative, and empirical methods. The research results answer the questions related to the content, form, and type of the contract as a legal title. It shows that Kosovo law, even though it has some similarities with the French civil code when it comes to the conditions of the valid contract, however Kosovo law differs as follows: a) the contract is not the only condition for acquiring the right of real servitude, but the registration is also needed, b) the content of contract must be based on the interaction of provisions of the law on property and the law on obligation relations, c) the same contract is obligation relationship in nature, but it also serves for the transfer of right and registration of the real servitudes. In this sense, it is concluded that Kosovo law is closer to the Austrian Civil Code and German Civil Code. However, it is not a pure German legal concept since it requires two contracts: a contract of obligation and a contract of transfer of real rights. [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]

This Article is the first to empirically examine whether firms draft well-organized online contracts that consumers can easily read, navigate, and analyze. "Messy Contracts," as this Article dubs them, are contracts that lack organizational signals in the form of a table of contents and informative headings. Analyzing the sign-in-wrap agreements employed by the most popular 100 websites--such as Google, Facebook, LinkedIn, Tik-Tok, Walmart, Twitter, Instagram, YouTube, and Amazon--this Article finds that businesses routinely draft messy contracts. The importance of this finding goes beyond what initially meets the eye. Messy contracts (1) reduce consumers' comprehension; (2) impose excessive cognitive costs on consumers, consumer advocates, watchdog organizations, and adjudicators who wish to read or navigate the contract or part of it; (3) undermine consumers' ability to remember the contracts' content, and (4) deter consumers from reading contracts. Furthermore, messy contracts indicate that competition over contract terms is lacking and that firms can utilize the features of the online environment to draft consumer contracts without accounting for consumers' needs more generally. Alarmingly, messy contracts may also denote that term ignorance may drive consumers' assent. In all, messy contracts facilitate exploitation, often harming the most vulnerable consumers. Part II of this Article provides the theoretical background to messy contracts. It contextualizes the problem of messy contracts, linking them to the 'no-reading' problem and delineating their social costs. Part III contains the empirical test of this Article. It discusses the sample contracts, the empirical methodology, and our results. Against this background, Part IV considers the normative implications of messy contracts, suggesting ex ante regulatory measures and ex post judicial scrutiny. It also acknowledges the limitations of our proposals and replies to key critiques. [ABSTRACT FROM AUTHOR]

Copyright of AIS: Ars Iuris Salmanticensis is the property of Ediciones Universidad de Salamanca 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.)

Taking inequality as a key challenge of our time, this article aims to highlight consumer markets, and their underpinning legal ground rules, as important contributors to inequitable wealth distributions. It illustrates how product design, as manifested in contractual terms, can allow firms to evade competition and divert resources upwards along society's wealth distribution curve. It then highlights the contestable legality of certain pricing practices, such as 'contingent charges', and the challenge they pose to fundamental principles of contract law. An in-depth view of the 2015 case of Beavis v ParkingEye argues that the UK Supreme Court has validated contingent pricing models in a manner unsupported by traditional contractual reasoning and unjustified by contemporary market failure analysis. The article asks contract law to confront the reality that it shapes market distributions in economically and politically significant ways, and appeals for greater scrutiny of the contribution of contract law adjudication to inequality. [ABSTRACT FROM AUTHOR]

In today's world, the speed and efficiency of resolving disputes in the field of contract law are of great importance for businesses and individual participants. Traditional litigation is often notorious for its length and high costs. In this regard, alternative methods, such as mediation and arbitration, are gaining more and more popularity. Their advantages, such as speed, confidentiality, and greater party autonomy, make them attractive for the resolution of contractual disputes. The article explores alternative dispute resolution methods in the field of contract law, including mediation, arbitration, and confidential settlement. The purpose of the study is to analyze alternative ways of resolving disputes in the field of contract law. Research methodology includes such methods as empirical method, comparative analysis method, forecasting method, and logical methods. As a result of the study, alternative ways of resolving disputes in the field of contract law and the advantages of each method compared to traditional court proceedings are considered and also provide examples of successful application in practice. The results of the study show that alternative dispute resolution methods in the field of contract law, such as mediation, arbitration, and confidential settlement, have some significant advantages compared to traditional litigation. In addition, current trends in the use of these alternative methods in modern contract law are investigated. The study also indicates that the success of these alternative dispute resolution methods in the field of contract law depends on mutual trust between the parties, who are ready to work together to achieve a mutually beneficial resolution of the conflict. [ABSTRACT FROM AUTHOR]

This article explores the concept of hybridization in insurance contract law, specifically focusing on the regulatory framework for insurance contracts in Serbia. The authors argue that the current unified regime for insurance contracts is inadequate and fails to protect the interests of consumers. They suggest that insurance contract law should be regulated separately from general contract law and should include provisions that guarantee additional protection for consumers. The article also discusses the importance of market conduct rules in ensuring fair practices in the insurance industry. Additionally, the article provides a list of references and citations from various sources that cover different aspects of insurance contracts and consumer protection, making them valuable resources for researchers in this field. [Extracted from the article]

Law and economics scholarship has traditionally analyzed efficient breach cases monolithically. By grouping efficient breach cases together, this literature treats the subjective motives and the distributive effects of the breach as immaterial. The Restatement (Third) of Restitution and Unjust Enrichment introduced a distinction based on the intent and the effects of the breach, allowing courts to use disgorgement remedies in cases of 'opportunistic' breach of contract (i.e., 'deliberate and profitable' breaches). In this article, we evaluate this approach, focusing on the effects of disgorgement remedies on allocative and productive efficiency, information-forcing and competitive effects, and restraint of breach-searching incentives. We show that, even from a purely consequentialist perspective, disgorgement remedies may be normatively warranted, especially when involving sellers' breach. Recent experimental evidence revealed that the preferences and reactions of ordinary people are in line with our evaluation of the effects of opportunistic breach. [ABSTRACT FROM AUTHOR]

In 2022, UNCITRAL Working Group IV was mandated to develop the Rules on data provision contracts as an answer to the needs of rapidly growing data market. It was expressly noted then, that the Working Group IV should be mindful of similar legislative initiatives. In October of 2023, the working version of the Rules was distributed. Among the other provisions, the Rules define a data provision contract as a contract under which one party provides data to other party. Given definition shows a great resemblance with the contracts on the supply of digital content regulated by Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services. This paper analyzes and compares some of the key provisions of the aforementioned legal instruments. Special focus is attached to the scopes of application of both instruments and exclusions from their application, legal nature and general characteristics of both data provision contracts and contracts for the supply of digital content, obligations of the contractual parties. The main objective is to establish clear boundaries regarding the objects and scopes of application of both legal instruments in order to determine their potential overlaps. Finally, the paper investigates the reach and the meaning of personal data provision as a sui generis reimbursement in the context of both instruments. [ABSTRACT FROM AUTHOR]

Copyright of Themis: Revista de Derecho is the property of Themis Asociacion 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 Environmental & Social Management Journal / Revista de Gestão Social e Ambiental is the property of Environmental & Social Management Journal 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.)

The goal of this article is to characterize the narratives of the Tapir Project (Proyecto Tapir) in relation to the contract annulment between the Ministry of Environment and Energy (Minae) and the Prozoos Organization (FundaZoo) in Costa Rica. The methodological approach is qualitative and with analytical methods by means of semi-structural interviews and the content analysis of one of the social networks and webpage of PT. One of the main findings is the linear narrative of complaints that PT makes in reference to the irregularities in the contract compliance and the deficient operation of the zoos under FundaZoo. In a general conclusion, the narratives of PT are characterized by being easy for all of the public to comprehend. [ABSTRACT FROM AUTHOR]

The study explores the unification of private international law and substantive contract law in the field of international sales law. It starts by asking whether the instruments of uniform substantive contract law can fully replace the rules of private international law, as well as if different periods be distinguished: can it be said that, at first, private international law played the decisive role in the settlement of international commercial disputes, followed by the law of traders, the Lex Mercatoria, and then by uniform norms of substantive law? Or is the relationship more sophisticated, because different gates open between the instruments of substantive law and conflict of laws? Can private international law eventually play a role in determining the application of substantive law conventions or in filling gaps in the uniform law? In the second part of the paper, several examples demonstrate that the unification of substantive law and private international law does not exclude or make each other superfluous; they live in a multifaceted relationship, besides competing as part of their long-lasting coexistence. [ABSTRACT FROM AUTHOR]

Copyright of Revista Jurídica (0103-3506) is the property of Revista Juridica 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 explores the interplay between international arbitration and data subject compensation claims under the General Data Protection Regulation (GDPR). The analysis focuses on the validity and enforcement of arbitration agreements and the resulting awards. The article argues that despite potential skepticism, arbitration can offer significant benefits to data subjects, and that compensation claims under the GDPR should be considered arbitrable under the New York Convention and CJEU case law. The article further argues that EU courts have a duty to refer disputes to arbitration, and that the mandatory provisions of EU law have limited means of interfering with this duty. Furthermore, it establishes that the misapplication of GDPR provisions does not automatically justify the denial of arbitral award recognition. The article argues that this is a natural extension of trust traditionally shown to arbitrators, and that such trust should not be easily cast aside.LAN-FR Résumé: Cet article explore l'interaction entre l'arbitrage international et les demandes d'indemnisation en vertu du règlement général sur la protection des données personnelles (RGPD). L'analyse se concentre sur la validité et l'exécution des conventions d'arbitrage et des sentences qui en résultent. L'article affirme qu'en dépit d'un scepticisme potentiel, l'arbitrage peut offrir des avantages significatifs aux personnes concernées, et que les demandes d'indemnisation au titre du RGPD devraient être considérées comme arbitrables en vertu de la Convention de New 216 York et de la jurisprudence de la CJUE. L'article affirme en outre que les tribunaux de l'UE ont le devoir de renvoyer les litiges à l'arbitrage et que les dispositions impératives du droit de l'UE ont des moyens limités d'interférer avec ce devoir. En outre, il établit que la mauvaise application des dispositions du RGPD ne justifie pas automatiquement le refus de reconnaissance de la sentence arbitrale. L'article soutient qu'il s'agit d'une extension naturelle de la confiance traditionnellement accordée aux arbitres, et que cette confiance ne devrait pas être facilement rejetée. Zusammenfassung: Dieser Beitrag untersucht das Zusammenspiel zwischen internationaler Schiedsgerichtsbarkeit und Ansprüchen des Inhabers des informationellen Selbstbestimmungsrechts und der Datenschutzgrundverordnung (DSGV). Dabei fokussiert die Analyse auf Fragen der Wirksamkeit einer Schiedsabrede sowie der darauf gestützten Schiedssprüche. Der Beitrag kommt zum Schluss, dass trotz der verbreitet zu findenden Skepsis Schiedsverfahren dem Inhaber des informationellen Selbstbestimmungsrechts durchaus Vorteile bringen können, und dass daher Ansprüche unter der DSGV für schiedsgerichtsfähig unter der einschlägigen New Yorker Konvention und im EuGH-Fallrecht erklärt werden sollten. Zudem kommt er zum Schluss, dass Gerichte in der EU Streitigkeiten an Schiedsgerichte überweisen müssen und dass dem auch zwingende EU-Normen nicht in signifikantem Maße entgegenstehen. Darüber hinaus wird im Beitrag argumentiert, dass nicht jeder Verstoß gegen die DSGV zwangsläufig zur fehlenden Anerkennungsfähigkeit des Schiedsspruches führt. Vielmehr bezieht der Beitrag die Position, dass das allgemein zum Ausdruck gebrachte Vertrauen der Rechtsordnungen in das Schiedsgerichtswesen auch hier zum Tragen kommen und nicht leicht zur Seite geschoben werden sollte. [ABSTRACT FROM AUTHOR]

The Iliad dwells on the wrath felt over an act of transgression. The backdrop for the story is the legend about the abduction of Helen by Paris while a guest at the palace of her husband Menelaos. Violation of the guest-host relationship starts the Trojan War. Yet the Iliad itself starts with Achilles' wrath over Agamemnon's taking of the young warrior's companion, Briseis, while the Greeks have Troy under siege. Just as Helen is the disputed object of desire between Menelaos and Paris, Briseis is the disputed object of desire between Achilles and Agamemnon. We can project a fourth element to both love triangles to assess the loss caused by the mimetic rivalry. Hector and Patroclus represent the measure of loss in the two quadrangular relationships. We should ponder over how the quest for appeasement in a war epic results in a peaceful ending. [ABSTRACT FROM AUTHOR]

The relevance of the research lies in the study and analysis of the impact of recodification on contract law and the determination of its future prospects. Recodification, which involves a systematic revision and unification of legislation, is necessary in connection with globalization, the development of electronic commerce, and new technologies. The change in social values also creates a need to revise the legal frame, in particular in the protection of consumer rights and compliance with ethical norms. The study proposes to identify problems, propose rational solutions, and contribute to forecasting the future development of the relevant field of law. The purpose of the study is to study the impact of the recodification process on the modern system of contract law and to determine the prospects for its development in the future. The methodological basis of the research is based on a combination of various scientific approaches and methods that allow for a comprehensive and comprehensive analysis of the research subject. Some of the main methodological approaches that can be used in this work include comparative analysis, legal analysis, empirical research methods, theoretical analysis, and historical analysis. Actual problems and challenges faced by the modern system of positive law are identified; the advantages and disadvantages of various models of recodification and their impact on the modernity of the researched field are clarified; an idea was obtained about the possible directions of the development of contract law, in particular regarding unification and harmonization, protection of consumer rights and consideration of ethical norms; recommendations and proposals for improving relevant legal norms in the context of recodification are formulated. [ABSTRACT FROM AUTHOR]

In contemporary business relations, the possibility for one party to a contract to transfer all of its rights and obligations under the contract to a third party by way of a voluntary act is of great utility. While the possibility to do this generally exists in jurisdictions across Europe, the rules by which it must be done can differ under the relevant national laws, not to mention the fact that a specific legal regime is not articulated in most civil codes. Against this background, this paper compares the approaches taken in Italian law and the uniform rules elaborated at an international level in the UNIDROIT Principles of International Commercial Contracts. [ABSTRACT FROM AUTHOR]

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.)

Retaining Contractual Equilibrium through the Doctrine of Change of Circumstances: What Can Be Learned from Chinese Experiences? By carrying out a large-scale investigation of judicial decisions delivered from 2009 to April 2023, this article analyses and presents Chinese experiences in retaining contractual equilibrium through the doctrine of change of circumstances. They include the judiciary's three-step analytical framework based on the shared assumption theory and the contractual equilibrium theory, categorisation of the disrupted contractual equilibrium caused by a change of circumstance, and elaboration on the relationships between the three doctrines regarding unexpected circumstances (i.e. the doctrine of change of circumstances, the doctrine of frustration of the purpose of the contract and the doctrine of force majeure) under Chinese contract law. This article, for the first time, systemically elaborates on the Chinese judicial analytical approaches in applying the doctrine of change of circumstances through a large-scale investigation of judicial decisions and clearly shows the doctrine's distinct role in the context of unexpected circumstances. The discussions help to gain a deep understanding of the application of the Chinese doctrine of change of circumstances in real life and are of great value for nourishing the comparative law discourse of the rules of unexpected circumstances. [ABSTRACT FROM AUTHOR]

The Principles of Asian Contract Law (PACL) are the most recent addition to the series of uniform laws regarding transnational commercial contracts. This time, the harmonization initiative must address the problem of a great variety of legal traditions, all of which are quite difficult to reconcile. The author focuses on the object and objectives of the PACL by reconsidering the notion of "Asian law" and the alleged cultural neutrality of contract law as a legal discipline. The paper argues that the PACL project lacks clarity. Its ambitious objectives, while apparently intelligible, fail to produce the desired results in their entirety: the Asian regional harmonization of contract law turns out to resemble its occidental forerunners. The study goes beyond the traditional comparative law. It explores the model law (in the making) in a broader context of legal policy, parallel regional private-law-making efforts in the field of contract law as well as in the context of legal globalization. [ABSTRACT FROM AUTHOR]

In the last 10 years the blockchain technology has become mainstream research topic because of its features that offers, as: decentralized system, peer to peer (P2P) transaction, distributed consensus, and anonymity properties. Also, the blockchain technology overshadows regulatory problem and technical challenges and one of the opportunities that offers the blockchain technology is the 'smart contract'. A smart contract is a set of programs that can be much better from the traditional contracts for some features which are self-verifying, self-executing and tamper resistant. Also, smart contract with the integration of blockchain technology without which cannot function, is capable of doing a task in real time with very low cost and provide a greater degree of high security level. The aim of this paper is to explain the concept of the smart contract and its components and function. The paper is aimed at presenting the issue of smart contract, blockchain technology. The specific focus was on the application of smart contracts in real estate. [ABSTRACT FROM AUTHOR]

Participants in obligations are obliged in the legal transaction to comply with good business practices. On obligations, apply customs and usage if the participants in the obligatory relationship arranged their application or if it appears from the circumstances that they wanted their application. Starting from that, codification and harmonization of law are inevitably related to a comprehensive procedure, the aim is to create a system of commonly agreed upon principles and regulations for contract law at a national level. Moreover modern contract law emphasizes the importance of faith. Parties are expected to act fairly towards each other during all stages of contracting. From negotiation to performance. Fostering trust and cooperation. Lastly contemporary contract law recognizes remedies for breach of contract. When one party fails to fulfill their obligations without justification remedies such as damages or specific performance may be sought by the aggrieved party. These principles form a foundation for contract law by establishing guidelines for fair and enforceable agreements between parties, in various commercial transactions. Barriers that seem to impede the seamless flow of transactions will be eliminated through the establishment and acceptance of harmonized regulations governing contracts, thereby enhancing legal doctrine. [ABSTRACT FROM AUTHOR]

Negotiation features in Contract Law in numerous guises. (1) Courts recognise that negotiation may precede agreement (2) Courts will enforce agreements made after a negotiation process where parties intended to enter into legally binding arrangements (3) Courts decline to construe the contract by interrogation of the negotiations which led up to the point of agreement (4) A Court may create imaginary negotiation evidence, gleaning this from a Court simulated negotiation between hypothetical parties to the actual agreement (5) In the event of a breach of contract, a party may establish that the breaching party had actual knowledge of a state of affairs that might be a not improbable result of that breach. That actual knowledge will almost certainly have been created or transferred during negotiations. In this note, I argue that the principles of construction at 3 and 5 above are manifestly mutually incompatible. The logic of my argument is that reconsideration of the exclusionary rule is merited, particularly in the light of multiple exceptions and given the fact that Judges routinely deal with evidence of negotiations. As the actual knowledge rule is unexceptionable and the exclusionary rule highly questionable, coherence can be brought to the law relatively easily. [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]

The full-scale invasion of Ukraine and crimes against humanity accompanying it have been fuelled by the mass spread of fakes and hatred incitements, forcing the largest online platforms to review and strengthen their content moderation policies. However, the approaches taken by platforms have not been perfect, and some of them could even exacerbate the situation. All in all, this is another evidence of the need to develop mechanisms being able to cope with the challenges to online speech and safety caused by dramatic social events. Basic approaches to address content moderation issues developed by now are self-(co-) and state regulation, on the one hand, and contract and human rights law, on the other. However, neither of them taken separately can ensure the needed level of protection of human rights online. Thus, in this article the ways to combine and improve these approaches are proposed. On the one hand, there is a need to dwell on private law mechanisms allowing to ensure the protection of human rights by virtue of judgements in private disputes. On the other hand, state regulation should be improved by international instruments allowing to provide for a uniform approach to regulation at a global scale. [ABSTRACT FROM AUTHOR]

Contract terms can be express or implied. But what does that mean? I argue that the distinction can be illuminated by reference to the philosophy of language. Express terms are best understood by reference to the truth-conditional content of the parties' agreement; implied terms are derived from express terms by a process of reasoning, albeit one aimed at establishing the parties' commitments. [ABSTRACT FROM AUTHOR]

Historically, if a creditor through his conduct prejudiced or injured a surety in the latter's rights or interest, the surety was entitled to claim release from his obligations under the general prejudice principle. However, the principle was summarily rejected by the Supreme Court of Appeal in Bock v Dubororo Investments (Pty) Ltd 2004 2 SA 242 (SCA), and it may now be determined whether there exists another interpretation in order to ensure its survival. This article considers the historical application of the general prejudice principle in suretyship agreements under South African law since the principle’s original incorporation from the English law up until its outright rejection by the Supreme Court of Appeal in Bock. It then aims to reinterpret the principle in the light of ordinary contract law principles as being nothing more than a breach of contract by the creditor. [ABSTRACT FROM AUTHOR]

Rights-based theories of private law tend to be wrongs based and defendant focused. But many private law wrongs do not seem like genuine wrongs, at least when the background distribution of resources is unjust. A very poor person, for example, may be held legally liable for breaching a one-sided contract with a very rich person. When such a contract reflects and reproduces existing injustice, it is hard to view the poor person's breach of such a contract as a genuine wrong against the rich person. Conversely, some obvious moral wrongs do not generate legal liability. There is, for example, no private law duty of rescue in the absence of a prior relationship in many situations in which most would agree that there is a moral duty of rescue. Thus, private legal liability seems not to track moral wrongdoing in significant respects, raising the question what instead justifies such liability. Instead of justifying private liability in terms of the defendant's wrongdoing, as corrective justice and civil recourse theorists do, we should seek a justification in terms of the plaintiff's moral permission to enforce her apparent rights. Switching our gaze from the defendant's wrongdoing to the plaintiff's moral permission to enforce her rights will not be normatively consequential if the plaintiff's moral permission arises when and only when the defendant has wronged her. But, I argue, background injustice can drive a wedge between genuine wrongdoing and the plaintiff's moral permission. Thus, by reconceptualizing private liability in terms of a plaintiff's moral permission to enforce her apparent rights, private law may be justified by the essential role it plays in constituting non-ideal political morality. [ABSTRACT FROM AUTHOR]

Animals are, or are like persons, and so should not be treated as mere property. But persons are not just non-property; they are contractors. They interact with property and with other persons. This article analyses the possibilities for a range of animals to fit within market liberal society as contractors from a legal disciplinary perspective. Some animals are capable of contract-like relationships of reciprocal exchange, and can consent, in a certain sense, to parts of such relationships. However, the dangers of the contractual frame, which is used to legitimate exploitation, may exceed the benefits. Some scholars have begun to explore these issues through the lens of animal labour, animals as workers deserving protections and benefits for their efforts. I analyse the application of contract to a variety of non-human animals and consider the discursive implications of this application, then draw out lessons for the ongoing use of animal labour framing. If we are to think through animals as workers, we should be careful to oppose the contractualization of that work - just as human worker advocates do. [ABSTRACT FROM AUTHOR]

On January 6, 2021, in the wake of the Capitol Hill uprising, Facebook suspended then-President Donald Trump's Facebook and Instagram accounts, citing the contract law principle of breach of contract for violating each company's terms of service; namely, Community Standards and Community Guidelines, respectively. Similarly, on January 8, 2021, Mr. Trump's Twitter account, @realDonaldTrump, was permanently suspended for violating the platform's Glorification of Violence policy. This left many asking whether the First Amendment's free speech clause, instead of contract law, should control user content on digital platforms. Put another way, if a social media platform was an intersection, should contract law or free speech have the right-of-way with respect to user content? This paper argues that while free speech has garnered significant attention recently, contract law properly has the right-of-way when it comes to controlling user content on social media platforms. In addressing the right-of-way question, this paper looks at arguments favoring contract law, arguments favoring free speech, and the available roads ahead. [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]

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This comment aims to show how Klaus Eller's paper on 'The Political Economy of Tenancy Contract Law'1 raises the stakes of private law scholarship and contributes to the larger project of remodeling legal institutions in a progressive direction. The comment starts by contextualising the rapid spread of the Law and Political Economy (LPE) movement; illustrates through examples the generative impact of LPE on contemporary contracts scholarship; and highlights two strands of Eller's original contribution to such literature: a welcome reflection on the value and limits of Materialisierung, and a radical widening of the private law inquiry to include institutional dimensions of legal reform. The point of fostering such new directions is not to ditch the very logic of private law and its endogenousmechanisms of justice, which are still essential to progressive legal work. What is no longer tenable is to keep seeking socially oriented solutions exclusively within the private law arsenal of possibilities, even when it has become obvious that only a synergic approach can produce accurate diagnoses of - and perhaps cures for - the structural predicaments of the market economy. [ABSTRACT FROM AUTHOR]

Europe's aggravating housing crisis lies in the blind spots of law. While central in constructing housing both as a home and as an asset, law bears the task of mediating between housing's multiple - social, economic, and cultural - dimensions. However, inner-legal fragmentation and a legal imaginary of property, the nation state, and its welfare system have depoliticized, deflected and rendered inaccessible the 'housing question'. Turning to tenancy contract law in particular, this article argues that the 'social' orientation of this early example of a 'materialised' field of contract law is not only ill-suited to reflect the recent structural shifts in the housing market brought about through financialisation. Tenancy contract law has effectively taken a conservative drift by claiming to adequately administer the bilateral landlord-tenant relation while being insensitive to macro-level developments. Tenancy contract law reindividualises tenant responsibility in the eye of hardships whose roots lie outside the contractual sphere and thereby furthers, rather than curtails, neoliberal housing policies. As a reaction, the article proposes political economy as a conceptual vantage point from which to develop a 'holistic housing law'. Such a perspective combines a concern for democratic and collective agency with careful attention to law's tacit and technical role in shaping the flow of finance and the techniques of landlords' governmentality. Part of this is a 'transformative tenancy law', to be reformulated to protect not against landlord bargaining power in the first place but against a hegemonic and expansive market rationality that structurally corrupts the social and material meaning of housing. [ABSTRACT FROM AUTHOR]

Every day, millions of decisions are made based on information provided by computers and millions of transactions are concluded automatically, by means or with the assistance of computer programs. Computers can accept payment and dispense products. Computers can also calculate the optimal price and predict the demand for the product. Technology enables us to automate a wide range of tasks involved in the process of forming contracts. Contrary to popular belief, such novel transacting practices are easily accommodated by existing legal principles, at least when it comes to the common law of contract. The latter is technology neutral and generally disregards the manner the parties' statements come into existence. Considerable uncertainty would result if the statements we see on our computer screens could be disavowed on the basis that they were the product of mindless computer operations. This article contends that legal analyses must start with the law, not with overdramatized descriptions of technology or the assumption that contract law cannot accommodate such. [ABSTRACT FROM AUTHOR]

This article explores the future of good faith in South African contract law after the Constitutional Court decision in Beadica 231 CC and Others v Trustees for the time being of the Oregon Trust and Others [2020] ZACC 13, 2020 (5) SA 247 (CC), taking Froneman J's proposal for a distinct role complementing public policy as its starting point. It investigates the majority judgment's denial of a 'free-standing' status to all 'abstract values', concluding that this should not be treated as confining good faith to an exclusively 'backstage' role. Good faith has long had an established 'frontline' presence in several contexts, which Beadica either acknowledged or failed to renounce. This includes the implied duty of good faith in employment contracts, which was delineated in the unanimous judgment authored by Froneman J in National Union of Metalworkers of South Africa obo Khanyile Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Limited and Others [2019] ZACC 25, 2019 (5) SA 354 (CC). I argue that this judgment regarded good faith as requiring not altruism but reciprocal respect for the equality of persons. This conception of good faith is shown to be present in firmly established uses of good faith, both 'backstage' and 'frontline', and also to provide essential support for the enforcement of contractual obligations when, as the Court is wont to do, this is justified by appealing to autonomy. Common law jurisdictions where good faith has recently risen to prominence against an historical and institutional backdrop similar to South Africa's (e.g. Australia, Canada and England), also exhibit this conception of good faith. The article accordingly investigates recent good faith jurisprudence in these jurisdictions with a view to considering what might be learnt from this for developing the future 'frontline' role of good faith in South Africa. Here it draws attention to the association of good faith with 'fidelity to the bargain' and to how that results in a careful and transparent exercise of bounded judicial discretion in light of commercial expectations. This refutes claims that the 'frontline' use of good faith threatens the principle of legality and commercial certainty. [ABSTRACT FROM AUTHOR]

This article considers the extent to which the law of contract is dictated by promise, agreement or intention rather than prevailing norms and standards. It argues that, over the last century, contract law has developed along two different lines. Through statute, policy objectives have been increasingly implemented in contract, in particular, with respect to consumer protection. By contrast, judge-made law has developed, particularly in the commercial context, so as to place greater emphasis on giving effect to what parties promise, agree or intend. This article analyses these changes through an empirical investigation of the law as it has developed in practice. It shows that contract law involves a balance between autonomy and institutionalism; it demonstrates that, beyond consumer protection under statute, contract has shifted in favour of party autonomy. [ABSTRACT FROM AUTHOR]

Some American law and economics scholars have used the term "penalty default rules" to describe default rules that are undesirable to at least one party to a contract. Parties have incentives to depart from these default rules and to share information in doing so. In a recent article, I brought this concept outside of the United States, the common law tradition and the law and economics literature by using it to describe a selection of rules in Québec contract law. In this article, I build on that work by identifying a selection of penalty default rules in three other civilian jurisdictions – France, Germany and Louisiana – that apply to contract formation, contract interpretation, changed circumstances and remedies for breach. Then, I argue that the penalty default rules that I have identified serve two valuable functions. First, they enhance at least some parties' freedom of contract by better equipping them to make informed decisions. Second, they complement the duty of good faith by incentivizing the sharing of information, including information that might not always need to be shared in order to comply with the duty of good faith. Although these functions are somewhat different than those that law and economics scholars have attributed to American penalty default rules, my analysis reveals that penalty default rules both exist and have value in the civilian world. [ABSTRACT FROM AUTHOR]

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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]

This paper is aimed at illustrating how the traditional idea of "inalienability" of personality rights has been reshaped and transformed by the increasing commodification of corporeal and incorporeal components of identity. Three different legal regimes have recently emerged in Europe: market-inalienability with regard to body rights; limited inalienability rules with regard to personal data; modified contract law applicable to incorporeal components of identity – such as name or likeness – having commercial value. The objective of this paper is to describe each of these models and provide a contribution both to the theory of inalienability and of contract law. [ABSTRACT FROM AUTHOR]

The new law of contractual discretion is developing apace. This article addresses three major issues in this dynamic field. First, the article propounds an analytical framework for understanding the nature and practice of reasonableness review in the contractual setting, based on doctrinal exegesis of the full run of cases on contractual discretion. Significantly, the analysis demonstrates that review of contractual discretion is characterised by a 'variable intensity' approach: the intensity with which courts scrutinise exercises of discretion is dependent on a series of contextual factors. Second, the article analyses the genus of the implied term, which imposes legal constraints on contractual decision-makers, arguing that the term is properly conceptualised as a term implied in law. Third, the article addresses the remedial consequences of non-compliance with implied fetters, identifying three different remedial models in the case law. The article challenges the common assertion that damages are the invariable remedy, arguing that an impugned exercise of discretion may be void or voidable. [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]

The following article analyses challenges and opportunities regarding the (re)consideration of Contract Law created by COVID-19 Pandemics. It points out that the widespread tragedies of contracts, contracting parties and contractual relations reveal the worth of skills and attitudes not usually delivered by Law Schools. Departing from a literature review and from the available pertinent data, the authors advocate the necessary commitment of legal education to negotiations and designing value-aggregating solutions to complex legal issues, particularly in the realm of Contract Law. [ABSTRACT FROM AUTHOR]

The main objective of this paper is to build a diagnosis of the current state of the local legal reality (Monteria and the department of Cordoba) regarding consumer law (identification of the most urgent and complex problems and the type of solutions they are currently subject to) in order to define lines of work in strategic litigation. Thus, the methodology used was to observe and analyze the repeated consultations to the Consumers League UPB Monteria of users' victims of impersonation (2019 to 2021), giving rise to this article in which a study is conducted ranging from the conceptual examination of the protection of personal data, the contractual modality used and impersonation, to the analysis of all related rules. The main findings allow identifying situations in which, due to the improper handling of the personal information of the subscribers of a contract that is generally of adhesion, they have been exposed to indiscriminate or improper use by malicious third parties without giving full compliance with the duties of protection and implementation of security protocols by the companies to ensure the proper custody of personal data, which in practice leaves the consumer exposed to various risks regarding the use of their personal information. [ABSTRACT FROM AUTHOR]