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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]

Originally, European consumer law was framed for boosting the internal market and welfare. The main aim of consumer legislation was "trough the achievement of a high level of consumer protection, to contribute to the proper functioning of the internal market". However, since the growing awareness of planetary boundaries and climate change, consumer habits acquired a different accent in European lawmaking. To ensure the European Union's commitments towards the UN Sustainable Development Goals, a more sustainable single market for businesses and consumers was to be achieved. Thus, the first packages of Sustainable Consumption and Production targeted only production and, slowly but steadily, consumer legislation opens up to this trend. The new Consumer Directive, which should re-draft and modernise the Consumer's Sales Law, was the first step towards enhancing environmental sustainability in consumption. Ensuring longer durability of consumer goods via longer warranty periods, and software updates enabling consumers to require repair are the two mentioned aims of the Directives to encourage more sustainable consumption patterns and a circular economy. This article will investigate how far the Czech implementation contributed to these aims. After a brief explanation why promoting sustainability is a binding target for the European and national legislator (1), national best practices will be presented which are designed to improve sustainability trough contract law in other European countries (2), and finally, it will be followed by an analysis of how far the Czech transposition of Directive 2019/771/EU ensures these targets (3). [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]

The „Covid-19” pandemic was a determining, catalytic factor in accelerating economic and social processes. The syncope generated by the pandemic in society has introduced new elements of „artificial intelligence” and „reasoned reality” in the economy of commercial insurance. Insurance Economics and Commercial Insurance Law, registers a series of changes in substance and form in relation to the completion of the documents for concluding and executing the insurance contract. The changes, generated by the obligation to physically distance and quarantine people, have made it impossible for potential policyholders, in some cases, to sign insurance offers received from insurance companies. An important legal aspect is given by the assumption of the insurance contract based on the electronic communication of the insurance application, of the insurance offer with or without certified and qualified electronic signature in digital format. This situation is not a procedure now regulated in the Civil Code, but it is a procedure imposed by insurers and accepted by policyholders. We will try to open a window to debate the issue in which people involved as legal specialists, people employed by regulators to find regulatory solutions.

Due to the Covid-19 pandemic, mass tort funds are becoming increasingly important as a form of compensation for civil liability. This quick and easy access solution must be duly regulated to preserve the general and specific aspects of the application of this figure. For this reason, this article focuses on the analysis of mass tort funds for their possible effectiveness in responding to the damage caused by the Covid-19 pandemic to fill the gaps in civil liability through a conceptual, doctrinal, and normative study. What is important is that they do not become tools for escaping liability. Keywords: civil law, civil liability, legal status, contract law, agreements.

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]

Copyright of Revista Chilena de Derecho is the property of Revista Chilena de Derecho 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 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]

In the case Harderwijk vs Hagendoorn (verdict 30 July 1810), Hagendoorn's suitcase was stolen during its transport by Harderwijk from Austerlitz to Utrecht. The suitcase had been fixed with ropes to the coach. The question was whether the carrier had exercised sufficient care by that. Harderwijk based the level of care of his son, who had transported the suitcase, on the contract of mandate: it required normal care and thus he was not liable for a coincidence in this case. Hagendoorn, on the other hand, pointed to a more severe form of liability, namely that of a carrier in the course of his profession (quasi-delict). That implied that, so Hagendoorn said, that the carrier was liable, even if he was not at fault. He should have used material that would prevent theft. But Harderwijk argued that it was custom, viz. daily practice, that carriers in the city of Utrecht used ropes, not chains. By order of Councillor De Brueys, this practice was proven by representatives of the guild and Harderwijk's argument was accepted. In this case, customary law set the express regulation of written law aside. [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]

Copyright of Cuestiones Políticas is the property of Revista Cuestiones Politicas 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.)

Text and data mining (TDM) is a process, typically automated, that looks for patterns in data that may otherwise remain unnoticed. In a world where data driven solutions play a progressively more important role, TDM has become a vital tool in sectors ranging from medicine, to commerce, gaining widespread attraction. Nevertheless, a variety of regulatory frameworks not always specifically attuned towards regulating TDM continue to apply concurrently. The literature within the context of regulatory frameworks governing TDM is a fragmented piecemeal of valuable insights into what "lawful" TDM resembles. This literature review adopts a grounded theory approach analysing 88 pieces of literature, collating views regarding "lawful" TDM, ultimately providing a holistic assessment of academics' and practitioners' views and opinions regarding the regulatory framework which governs TDM. A total of 7 categories were identified and each of these are analysed. Tables are provided in the Appendix (accessible here: https://doi.org/10.5281/zenodo.12654691)highlighting which scholarly works were used for each section of the literature review, but also how those works were used. It is ultimately concluded that the regulatory frameworks that apply to users conducting TDM are multifaceted, and ever-changing on a case-by-case basis. There is an ever-growing need for a holistic interpretation of the regulatory frameworks which apply, creating a map which would allow for users conducting TDM to navigate this complex web of legal rules., Competing Interests: No competing interests were disclosed., (Copyright: © 2024 Vrakas G.)

The novel coronavirus (Covid-19) pandemic has resulted in the disruption of activities in major centres of global production, with adverse portents for contractual obligations across global supply chains. The global pervasiveness and dynamic propagation of the risks arising from contractual failures provides an opportunity to reconsider the nature and impact of mechanisms for excusing failure to perform contractual obligations under adverse circumstances (Excuse). Such mechanisms include those found in the general law (for example, frustration in common law and analogous doctrines in civil law traditions) and contractual clauses (for example, Force Majeure and hardship clauses). Establishing extant rights and obligations under current contracts may provide only limited illumination on how parties will address these failures. Principles in economics of contract (e.g. incomplete contract and transaction cost theories) and the commercial reality of global supply chains both suggest that parties tend to lean towards contract- and relationship-saving adjustments, rather than strict enforcement of rights. Therefore, this article analyses the doctrinal and contractual regimes of Excuse with a view to assessing their respective scopes for transaction and relationship saving. It also highlights the peculiar nature of supply chain relationships wherein exchange partners enter into a sequence of dyadic relationships aimed at delivering a good or service to the end user. The tension between that operational logic and the legal principle of privity of contract makes these relationships – undergirded as they are by what we call “operationally-linked (but) legally separate” (O.L.L.S.) contracts – peculiarly vulnerable to mismatches in their Excuse regimes. Mismatches occur where failure to perform a determinant contract is more easily or much earlier excusable than in a dependent contract within the same chain operation. This may, in turn, exacerbate risks of supply chain disruptions in a pandemic scenario. The article designs a framework by which the doctrine-contract complex in the regimes may be used to test the dynamic scenarios of a global pandemic for the purpose of scanning for such mismatches. This framework will be useful in both post-event circumstances, as parties embark on relationship-saving negotiations, and in designing ex ante risk management measures. Through the understanding of the peculiarity of supply chain relationships and the O.L.L.S. contracts, this article also proposes to open up new directions in which the insights therefrom might be useful. An example suggested and prefatorily explored in this article is in the “governance beyond privity” conundrum in the context of supply chain disruption. Another is its potential contribution to the emerging multifactorial approach to determining frustration of contract in some common law courts.

The research, based on the examination of the traditional orientation established in the Canal de Craponne arrêt, traces the evolution of the French system concerning the institution of imprévision. We know, art. 1195 of the reformed civil code, highlighting critical issues especially regarding judge discretion.

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]

Summary: Compared to the writings of other teólogos-juristas belonging to the so-called School of Salamanca, Pedro de Oñate's (1567-1646) De contractibus has met with little if almost no interest in the literature. It nevertheless marks an epochal achievement in the history of juridical and economic thought. Published between 1646 and 1654, Oñate's De contractibus epitomizes five centuries of scholastic thinking about the moral regulation of the market. It is a spectacular work, addressing hundreds of problems related to contractual agreements and commercial life in general. This paper offers an overview of Oñate's lengthy assessment of monopolistic practices, including price-fixing cartels, import barriers, the creation of artificial scarcity, and legal monopolies, including the conceptualization of intellectual property. Two major conclusions can be reached from the close-reading of Oñate's treatment of monopolistic practices. First, Oñate's opinions are marked by an even starker emphasis on individual rights, property and freedom than those of his colleagues working in major cities on the other side of the Atlantic. Second, his analysis is not only the reflection of his extraordinary knowledge of centuries of scholastic thinking about the morality of the market, but also of his practical experience in the New World. [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]

One of the most hotly debated subjects in the legal community is good faith, which is a crucial defense in European contract law. Although it is a widely acknowledged idea, there is no agreement on how important good faith is in today's civil contractual responsibilities. This essay's goal is to explore the good faith principle, elucidating its meaning and describing how it is reflected in Iraqi law. Good faith is discussed in terms of both its subjective and objective implications. The objective meaning of good faith is seen as a way to preserve moral contractual connections and lessen potential disparities brought on by the doctrine of party autonomy. According to the subjective definition, good faith might relate to situations when a person acts with trust that what they are doing is legal or when a third party is seeking protection. This essay also aims to examine the notion of good faith from the perspective of Iraqi law. It is considered that Albania's theory is not particularly sophisticated. It should be emphasized that legal precedent varies and that whether good faith may be removed from a contract is still up for dispute. [ABSTRACT FROM AUTHOR]

Copyright of Orientación y Sociedad is the property of Universidad Nacional de La Plata 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 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]

The purpose of this paper is to prove the importance of legal and economic spheres for the realization of justice according to the Amartya Sen’s Theory of Justice. In the most stable democratic societies, the legal system is an indispensable reference and demonstrates the strength of the population’s political values and convictions in relation to the social organization at present and in subsequent periods. Empirical data and two laws that contribute to the social equity, participation, exercise of freedom and the overcoming of inequalities in Brazil are presented. The Amartya Sen’s contribution is relevant in the world for the recovery, updating and improvement of democracy.

Countless contracts have been undermined by the COVID-19 pandemic of 2020 as well as government orders to contain it. Flights have been canceled, concerts have been called off, and dorms have been closed, just to name a few. Do these all count as breaches of contract—or are the parties excused due to the extraordinary circumstances? And how should the losses be allocated between the parties? The law provides one set of answers to these questions; ethics offers another. With a focus on American law (developed over the past two centuries) and Jewish ethics (developed over millennia), this paper shows that the two systems are in accord with some respects and differ in others: Both law and Jewish ethics would excuse a party who cannot complete his contract due to a force beyond his control, like the COVID-19 pandemic. Yet Jewish ethics would require that the excused party still be paid, while American law would not. [ABSTRACT FROM AUTHOR]

This Article uses the term patriarchal bargain in order to analyze spousal agreements. In her canonical article Deniz Kandiyoti has coined the term patriarchal bargain in order to describe how women negotiate with patriarchy and strategize under the constraints of male domination. Her seminal work has been highly influential in sociology and gender studies. However, legal scholarship has paid little attention to her work. This Article seeks to bridge this gap and explores how women bargain in the shadow of patriarchy. Using a European courts' decision as an example, this article adds the patriarchal context of spousal agreements. This social context enriches our understanding of spousal agreements and deepens our understanding of contracting under conditions of social inequalities. [ABSTRACT FROM AUTHOR]

This paper is concerned with the interaction between the principle of equal treatment and non-disclosure agreements in English law. The common use of non-disclosure agreements (also referred to as 'confidentiality clauses' or 'gagging clauses') as a term in contracts settling possible claims in which harassment or discrimination were alleged came to public prominence in England following the #MeToo movement. There has, though, been little consideration of the enforceability of these non-disclosure agreements as a matter of contract law and the impact of non-disclosure agreements upon equality. This paper examines the legal enforceability of these agreements as a matter of English contract law. It is argued that non-disclosure agreements, designed to obtain silence, work to impede the equality of women. English contract law provides few protections from the potential abuse that can arise from non-disclosure agreements. [ABSTRACT FROM AUTHOR]