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Category: Contract

How to make Contract Law interesting?

22 April, 200921 April, 2009
| 1 Comment
| Cinema, television and theatre, Contract

This one, from Contracts Prof Blog, speaks for itself:

Relive your 1L Contracts class at home! With better looking people!

A After what has seemed to most Contracts professors an unconscionably long time, the TV series The Paper Chase has finally come out on video.  Technically, it's called "season one" although there was only one season on the original CBS program in 1978-79.  Three additional seasons were run on Showtime starting in 1983, which allowed the protagonist, "Mr. Hart," to graduate Harvard in only four years.

On the Amazon web site (linked above) you can see a riveting clip dealing with (among other things) whether one who performs the service requested by a reward offer can recover if he was unaware of the reward.  The growing tension among the students who offer different answers is . . . palpable. 

It doesn't get any better than this.

[Frank Snyder; h/t Scott Burnham]

My previously declared interest is here.…

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Services and overpayments

11 March, 200916 July, 2013
| 2 Comments
| Contract, Restitution

Elecref logo, via their siteThe English Court of Appeal recently considered two interesting issues in Furmans Electrical Contractors v Elecref Ltd [2009] EWCA Civ 170 (10 March 2009). Furmans were subcontractors installing electrical cabling on jobs on which Elecref were electrical contractors. In early September 2007, a dispute arose as to the basis on which Furmans were remunerated; in particular, Elecref claimed that they had been overcharged. In early October, Elecref made one further payment on foot of an invoice from Furmans, but thereafter declined to make any further payments on foot of invoices covering various periods from August to October. Furmans sued to recover those amounts, and Elecref counterclaimed for the overpayments.

Waller LJ (Arden and Moore-Bick LJJ concurring) effectively allowed Furmans’ claim but dismissed Elecref’s counterclaim, and in doing so made two interesting comments. …

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Interpreting Contracts

27 February, 200927 May, 2009
| 1 Comment
| Contract, Irish Law

Photo from Killarney Golf & Fishing Club


In National Tourism Development Authority v Coughlan [2009] IEHC 53 (17 February 2009) Charlton J had little difficulty in concluding that the activities of a golf club were matters of sport and recreation and therefore had insufficient public benefit to amount to a charitable trust. Socially fascinating though the issue is, the judgment is also interesting for Charlton J’s various legal musings, including his comments on the interpretation and construction of private legal documents, including contracts and trust deeds.

The starting point for the interpretation of contracts is now the speech of Lord Hoffmann in Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896, [1997] UKHL 28 (19 June 1997), which has commended itself to the House of Lords, the Privy Council, the High Court of Australia, the Irish High Court (BNY Trust v Treasury Holdings [2007] IEHC 271 [despite the citation, it is not available online, so far as I can find]; Ryanair Ltd v An Bord Pleanala [2008] IEHC 1 (11 January 2008); Connolly v An Bord Pleanála [2008] IEHC 224 (08 July 2008)) and the Irish Supreme Court (Analog Devices v Zurich Insurance Company [2005] IESC 12 (16 March 2005); Emo Oil Limited v Sun Alliance & London Insurance Company [2009] IESC 2 (22 January 2009)).…

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Fault in Contract Law

13 February, 200912 February, 2009
| 1 Comment
| Conferences, Lectures, Papers and Workshops, Contract

From the University of Chicago School of Law Faculty Blog:

Audio/Video: Fault in Contract Law

In September, Frank and Bernice J. Greenberg Professor of Law Omri Ben-Shahar and Fischel-Neil Visiting Professor of Law Ariel Porat organized a conference intended to reevaluate the role of fault in contract law. Speakers included Chicago faculty Saul Levmore, Eric Posner, Richard Epstein and Judge Richard Posner, along with experts in contract law from around the world. Subscribers to our Faculty Podcast may have already heard Judge Posner’s “Let Us Never Blame a Contract Breaker,” and audio and video of the entire conference is now available on the conference website. … [Here is] Professor Ben-Shahar’s introduction to the conference …

The papers from the conference will be published in the June 2009 issue of the Michigan Law Review, and an expanded volume collection will be published later by Cambridge University Press. In the meantime, the abstracts are on the Michigan Law Review site, and here are some of the drafts I’ve been able to find online, mostly (though not exclusively) from SSRN:

Eric Posner (Chicago) Fault In Contract Law here, here
Roy Kreitner (Tel Aviv) Fault at the Contract-Tort Interface here (pdf)
Ariel Porat (Tel Aviv) A Comparative Fault Defense in Contract Law here
Saul Levmore (Chicago) Stipulated Damages, Super-Strict Liability, and the Real Rule of Contract Remedies here (pdf)
Richard Craswell (Stanford) When is Willful Breach ‘Willful’?…

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Impossibility, Impracticability, and Frustration

11 February, 200922 March, 2011
| No Comments
| Contract

King Edward VII of England, via Contracts Law Prof BlogIn the first issue of the Journal of Legal Analysis [updated link] (to which I devoted a previous post) I am particularly taken with Melvin Eisenberg‘s “Impossibility, Impracticability, and Frustration” (pdf). The abstract:

Three fundamental concepts underlie the principles that should govern unexpected-circumstances cases. (1) A contract consists not only of the writing in which it is partly embodied, but also includes, among other things, certain kinds of tacit assumptions. (2) These assumptions may be either event-centered or magnitude-centered. (3) The problems presented by unexpected-circumstances cases should be viewed in significant part through a remedial lens. The principles that rest on these concepts can be broadly summarized as follows. A shared nonevaluative tacit assumption that a given circumstance will persist, occur, or not occur during the contract time should provide a basis for judicial relief where the assumption would have affected the promisor’s obligations had it been made explicit. If the promisor was neither at fault for the occurrence of the unexpected circumstance, nor in control of the conditions that led to the occurrence, she should not be liable for expectation damages. The promisor should, however, be liable for restitutionary damages, because it would be unjust to allow the promisor to both be excused from performance and retain any benefits that she received under the contract.

…

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Recent Contract Law Scholarship

29 January, 200926 January, 2009
| No Comments
| Contract

From Julie Clark's Australian Contract Law site.The most recent New York University Law Review (vol 83, number 6, December 2008) has two wonderful pieces about the Law of Contract, one relating to the old chestnut of efficient breach (a doctrine that has taken root in US law, but not elsewhere in the common law world), the other relating to the theoretical structure of the law’s approach to the subject.


Barry E. Adler Efficient Breach Theory Through the Looking Glass (pdf); here’s the abstract:

A party in breach of contract cannot sue the victim of breach to recover what would have been the victim’s loss on the contract. The doctrinal rationale is simple: A violator should not benefit from his violation. This rationale does not, however, provide an economic justification for the rule. Indeed, efficient breach theory is founded on the proposition that a breach of contract need not be met with reproach. Yet the prospect of recovery by the party in breach—that is, the prospect of negative damages—has received scant attention in the contracts literature. Close analysis reveals potential costs to disallowance of negative damages, particularly where a party with private information about the benefits of termination also has an incentive to continue under the contract.

…

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Contract law and the slave trade

14 January, 200930 November, 2020
| 4 Comments
| Contract, The Zong

Schama - Rough Crossings - cover, via publishers' websiteNate Oman, on Concurring Opinions, writes that he has just finished Simon Schama‘s Rough Crossings: Britain, Slaves, and the American Revolution (cover left) (Harper Collins, 2007). He is not sparing in his praise for the book, and then comments:

As a contract geek, however, the most fascinating part of the book was the story of The Zong, an episode that surely must stand as the most hideous example of perverse incentives in the history of contract drafting.

The case is Gregson v Gilbert (1783) 3 Doug 232, 99 ER 629, [1783] EngR 85 (22 May 1783) (pdf). It related to a claim against an insurer for the value of cargo thrown overboard from The Zong as a matter of necessity to survive an emergency. The claim succeeded at first instance, but on appeal, Lord Mansfield and Willis and Buller JJ ordered a retrial on the grounds that the evidence as adduced was unsatisfactory. So far, so ordinary. What makes this case extraordinary is that the ship’s cargo consisted of slaves, and the emergency consisted of a lack of water for them to drink when the ship’s captain’s navigation skills failed him and he missed landfall in Jamaica (it is voyage 84106 on the Trans-Atlantic Slave Trade Database).…

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Contract, planning, PIAB

12 January, 200930 January, 2009
| No Comments
| Contract, Irish cases

Four Courts dome, via the Courts.ie website.Law reports from today’s Irish Times:

Contract based on undermining planning code cannot be enforced
Kelly -v- Simpson: High Court. Judgment delivered by Mr Justice Charleton on December 1st, 2008

A contract based on a price that would not have been achieved but for representations designed to undermine the planning code should not be enforced. [see [2008] IEHC 374 (01 December 2008)].


Permission required for quarry development
Meath County Council -v- Sheils: High Court. Judgment delivered by Mr Justice Hedigan on November 13th, 2008

The intensification of quarrying at a quarry in Co Meath, including the use of blasting, constituted unauthorised development within the meaning of the Planning and Development Act, 2000 and the applicant, Meath County Council, was entitled to orders restraining the respondent from continuing, prohibiting any intensification of the work, and directing the removal of machinery from the site. [see [2008] IEHC 355 (13 November 2008)].


Personal Injuries Assessment Board must deal with solicitors
O’Brien -v- Personal Injuries Assessment Board: Supreme Court, Judgment delivered by Mrs Justice Denham on December 19th, 2008, Mr Justice Murray concurring.

If an applicant to the Personal Injuries Assessment Board (PIAB) wishes to have a legal representative, he or she is entitled to have one.…

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