Law & Society: Private Law - Contracts eJournal最新文献_第5页

Reckoning Contract Damages: Valuation of the Contract as an Asset 合同损害赔偿的计算:合同作为资产的估价

Law & Society: Private Law - Contracts eJournal Pub Date : 2016-03-24 DOI: 10.2139/SSRN.2754267

Victor P. Goldberg

{"title":"Reckoning Contract Damages: Valuation of the Contract as an Asset","authors":"Victor P. Goldberg","doi":"10.2139/SSRN.2754267","DOIUrl":"https://doi.org/10.2139/SSRN.2754267","url":null,"abstract":"When a contract is breached the law in most jurisdictions provides some version of the aphorism that the non-breaching party should be made whole. Application of the aphorism has proven problematic, particularly for anticipatory repudiations. This paper argues for a general principle that should guide application — the contract is an asset and the problem is one of valuation of the change in value of that asset at the time of the breach. This provides a framework that will help clear up some conceptual problems in damage assessment. The focus is on direct damages, not consequential damages.The paper begins with the simplest case in which the breach occurs at the time of performance. Even in that case there is some controversy as to whether post-breach facts (e.g., changes in market conditions) should be taken into account. In the United States, for instance, some commentators argue that there is a conflict between UCC §2-706 (cover) and 2-708(1) (contract/market differential). The conflict is resolved if, instead of viewing the two as alternatives, we view cover as evidence of the value at the time of the breach.Long-term contracts present two different issues, the breach of a single installment and the anticipatory repudiation of a contract with many years yet to run. The latter problem is exacerbated if the contract includes such complicating factors as take-or-pay clauses, price adjustment mechanisms, and early termination options. The value of the contract at the time of the repudiation would reflect both the expected future stream of income (lost profits) and the efforts of the counterparty to adapt if performance ceased (mitigation). Cases of this sort often arise in international arbitrations. A State might, for example, grant a concession to exploit an oil field and, after the development has been successful, it could try to recapture some, or all, of the value, perhaps by imposing taxes or by an out-and-out expropriation. The basic damage principle — valuation at the time of the repudiation — remains the same.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129691484","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 3

The Reform of Polish Sales Law – Re-Implementing the Consumer Sales Directive 波兰销售法改革-重新实施消费者销售指令

Law & Society: Private Law - Contracts eJournal Pub Date : 2016-01-10 DOI: 10.2139/SSRN.2854137

Piotr Tereszkiewicz

引用次数: 2

Integración Del Contrato 'Incompleto' En El Ordenamiento Italiano (Completion of 'Incomplete' Contract in Italian Law) 将“不完整”合同纳入意大利法律(意大利法律中“不完整”合同的完成)

Law & Society: Private Law - Contracts eJournal Pub Date : 2015-12-14 DOI: 10.18601/01234366.n29.06

M. Farina

引用次数: 0

Rethinking Rescission 重新考虑废除

Law & Society: Private Law - Contracts eJournal Pub Date : 2015-10-12 DOI: 10.2139/ssrn.2673218

R. Bernhardt

引用次数: 0

Is the CISG Applicable to Hong Kong-Related Disputes? 《销售公约》是否适用于与香港有关的争议?

Law & Society: Private Law - Contracts eJournal Pub Date : 2015-08-20 DOI: 10.2139/SSRN.2648323

B. Cartoni

引用次数: 0

The Contractual Duty of Loyalty: Good Faith in the Performance and Enforcement of Contracts 合同忠诚义务:履行和执行合同中的诚信

Law & Society: Private Law - Contracts eJournal Pub Date : 2015-06-15 DOI: 10.2139/ssrn.3076434

Jori Munukka

{"title":"The Contractual Duty of Loyalty: Good Faith in the Performance and Enforcement of Contracts","authors":"Jori Munukka","doi":"10.2139/ssrn.3076434","DOIUrl":"https://doi.org/10.2139/ssrn.3076434","url":null,"abstract":"In most Western legal systems, contract law, to some extent, requires parties to act in consideration of the counterparty’s interests. This is originally a Roman law idea. In the Latin European law family we find bonne foi and similar concepts laid down in the civil codes. In German law the codified concept Treu und Glauben is considered to be one of the most important pillars of the private law system, and equivalent codified domestic concepts have impetus throughout the Germanic private law family. The standing of good faith within the common law world, however, differs significantly. In some common law countries good faith is fundamental. This is especially true for the United States, where good faith in performance and enforcement of contracts has grown into almost every aspect of contract law in almost every state. It has a statutory basis as a result of the state by state transpositions of the Uniform Commercial Code, and the authority is strengthened by the Restatements (2d) of Contracts. The United Kingdom is at the opposite end of the scale. Good faith, though existing in some types of contracts, is not recognised as a norm with general applicability, not even in the contractual stage. \u0000One will find Nordic law, as so often it is, positioned between civil and common law but clearly leaning towards civil law. This requirement is in Nordic legal terminology phrased the duty of loyalty. It has no statutory basis with general scope. Nonetheless, a requirement to consider the other party’s interests does exist. In support, there are some statutory provisions covering certain professions, a growing number of court cases and consensus in the literature.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-06-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114836235","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Unjust Enrichment in Australia 2014 2014年澳大利亚不当得利案

Law & Society: Private Law - Contracts eJournal Pub Date : 2015-04-01 DOI: 10.2139/ssrn.3891934

K. Barker, H. Tait

引用次数: 0

No-Haggle Agreements No-Haggle协议

Law & Society: Private Law - Contracts eJournal Pub Date : 2015-03-04 DOI: 10.2139/SSRN.2573902

Saul Levmore, A. Porat

引用次数: 3

Cross-Border Commercial Contracts and the Ongoing Need for Consideration 跨境商业合同和持续需要考虑的问题

Law & Society: Private Law - Contracts eJournal Pub Date : 2015-02-01 DOI: 10.2139/SSRN.2645395

Kevin J. Fandl

引用次数: 0

An Uneasy Case of Multiple Tracing Claims in English Law 英国法上一个令人不安的多重追索案件

Law & Society: Private Law - Contracts eJournal Pub Date : 2015-01-02 DOI: 10.2139/ssrn.2608930

Magda E Raczynska

引用次数: 0