LSN: Regulation of Contracting Private Parties (Topic)最新文献

{"title":"Too Long; Didn't Read: Finding Meaning in Platforms’ Terms of Service Agreements","authors":"Michael Karanicolas","doi":"10.2139/ssrn.3887753","DOIUrl":"https://doi.org/10.2139/ssrn.3887753","url":null,"abstract":"It has become a common trope to note that online terms of service agreements are lengthy, obtuse, and universally ignored by the millions of users who bind themselves under these contracts every minute of every day. However, the enormous power that a handful of online platforms now wield over the global expressive discourse, power which is manifested through interpretations of the content standards laid out in these byzantine documents, has led to a growing focus on how these rules are set, modified, and interpreted. In the context of an ongoing debate around reform proposals to section 230 of the Communications Decency Act, this article argues for a model of contractual interpretation which limits the scope of protection available to platforms through the boilerplate exculpatory clauses in their terms of service agreements. The article justifies this position through a comparative analysis of the user agreements of the three largest platforms, to demonstrate a widening gap between the structure of the content policies and privacy policies on one hand, and the boilerplate terms of service on the other, arguing that this structural evolution supports the application of theories of contract and pseudo-contract to interpreting the terms of service.","PeriodicalId":430410,"journal":{"name":"LSN: Regulation of Contracting Private Parties (Topic)","volume":"67 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130159833","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}

{"title":"The Role of a Non-Disclosure Agreement on the Protection of Intellectual Property Rights","authors":"Chinara Gasimova","doi":"10.2139/ssrn.3694375","DOIUrl":"https://doi.org/10.2139/ssrn.3694375","url":null,"abstract":"This article provides information on the importance of a non-disclosure agreement (“NDA”) for the protection of intellectual property rights (“IPR”). The provisions need to be included in NDA for the protection of IPR, legal consequences in case of a violation of any provision of NDA, and appropriate regulations within the relevant legislation of the Republic of Azerbaijan are discussed in this article. It is reviewed particularly in the context of the relationship between an employee and an employer regarding intellectual property (“IP”).","PeriodicalId":430410,"journal":{"name":"LSN: Regulation of Contracting Private Parties (Topic)","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132241149","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}

{"title":"The Failure of 'Notice and Consent' as Effective Consumer Policy","authors":"James P. Nehf","doi":"10.2139/ssrn.3440816","DOIUrl":"https://doi.org/10.2139/ssrn.3440816","url":null,"abstract":"Over the past several decades, the preferred model for consumer protection in most countries has emphasized a notice and consent (or choice) approach with less emphasis on normative laws that prohibit or mandate certain contract terms, acts or practices. In this essay, I argue that it is time for consumer advocates and policy makers to recognize that a notice and consent approach to standard contract terms and conditions is not likely to protect consumer interests in modern day contractual settings. Indeed, policy makers are doing more harm than good by continuing to focus on notice and consent, thereby giving a misleading impression that consumer interests are being protected when they are not. Moreover, by adhering to a notice and consent regime, they avoid discussing the more difficult yet most fundamental questions about what commercial practices should be permitted and which should be banned.","PeriodicalId":430410,"journal":{"name":"LSN: Regulation of Contracting Private Parties (Topic)","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121869303","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}

{"title":"Justice for Contracts","authors":"Hanoch Dagan, Avihay Dorfman","doi":"10.2139/ssrn.3435781","DOIUrl":"https://doi.org/10.2139/ssrn.3435781","url":null,"abstract":"This Article develops a theory of just contractual relationships for a liberal society and demonstrates its manifestations in vast areas of modern contract law. As a liberal theory, properly-called, our account is premised on the canonical commitments of liberalism to self-determination and substantive equality. As a theory of contract law, it focuses on the parties’ interpersonal interaction, rather than on the justice of the social order as a whole. As a theory of just contractual relationships, it attends to the justness of both the formation of contracts and of their implications. \u0000 \u0000After surveying and criticizing the leading competing theories of contractual justice, we explain how relational justice – namely: reciprocal respect for self-determination and substantive equality – both justifies the enforcement of contracts and prescribes a mandatory floor of contractual justice. This floor explains the rules that regulate the parties’ bargaining process in a way that goes beyond the traditional laissez faire mode of proscribing only the active interference of one party with the other’s free will. It thus accounts for the expansion of the law of fraud beyond the traditional categories of misrepresentation and concealment to include also affirmative duties of disclosure. The same conceptual expansion also underlies doctrines as diverse as unilateral mistake, duress, anti-price-gouging laws, and admiralty rules of salvage. Finally, concern for relational justice offers the most charitable explanation of unconscionability doctrine and some of its modern regulatory cognates. \u0000 \u0000The justice of an on-going contract presents an additional challenge because the typically sequential contractual performance generates heightened interpersonal vulnerability. This is why modern contract law solidifies a cooperative conception of contract performance that goes beyond the mandatory floor of relational justice. The duty of good faith and fair dealing, which sets up the contractual rules of the game, stands at the core of this web of doctrines. The substantial performance doctrine in service contracts and the principle against forfeiture in applying the condition/promise distinction, as well as the burden to mitigate and the choice of the expectation interest as the default measure of recovery can likewise be interpreted as belonging to this cooperative framework. All these doctrines require contractual parties to assist each other up to a point. Here, relational justice is functioning not as a floor, but rather as an aspirational idea, one that informs contract law’s normative defaults.","PeriodicalId":430410,"journal":{"name":"LSN: Regulation of Contracting Private Parties (Topic)","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127411428","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}

{"title":"The Unnecessary Warranty of Fitness for a Particular Purpose","authors":"R. D. Brain","doi":"10.2139/ssrn.3434084","DOIUrl":"https://doi.org/10.2139/ssrn.3434084","url":null,"abstract":"Warranty law provides that if a seller makes “an affirmation of fact” about an attribute of a good, an express warranty is created upon its sale. But if the buyer specifies she wants a good with that same attribute, a warranty of fitness for a particular purpose is formed upon the sale. This distinction, without an analytical difference, can cause problems. \u0000 \u0000Take the case where a dry cleaner wanted to use its existing steam cleaner to power a heating system for its store. It called a commercial heating company, explained its desires, and the heating company put in a system. The system didn’t work – it needed more steam than could be produced by the existing cleaner. The heating company, however, had effectively disclaimed the warranty of fitness in the contract. So the dry cleaner lost because only a fitness warranty was created when the buyer brought up the need to run the new system from the existing equipment, and fitness warranties can be disclaimed. But if the seller had promised with words that the heating system could be powered by the existing steamer, then the buyer would have received an express warranty, and the dry cleaner would have prevailed because it is almost impossible to disclaim an express warranty effectively under warranty law. \u0000 \u0000Such analytical tap dancing is nonsense. The law in both cases should protect the legitimate expectation of the dry cleaner that the new heating system would be run by the existing steam unit, and no disclaimer should take that away. That result can be achieved by finding that the seller’s undertaking to supply a good in response to an expressed need of the buyer acts as an express promise that the goods will meet the buyer’s needs. In that way, what are now fitness cases can properly be treated as express warranty cases, and the fitness warranty can be eliminated as unnecessary. \u0000 \u0000Express warranty is the proper theory because in both fitness and express warranty cases, the attribute of the good being warranted is expressed. In traditional express warranty cases it is expressed by the seller; in traditional fitness cases, it is expressed by the buyer. But it is expressed, and the act of the seller in furnishing goods that purportedly have that attribute is as much of a promise that the goods are suitable as if the attribute was promised in words. That is, it should make no difference if the seller promises that a dive watch is watertight down to 200 feet while she hands over the watch to the buyer, or the buyer asks for a dive watch that is watertight down to 200 feet and is handed the same watch by the seller. In both cases, the same contract is formed, and, in both cases, an express warranty that the watch can be used down to 200 feet is created. \u0000 \u0000Further, eliminating the fitness warranty would have other beneficial consequences, such as: (1) eliminating the systemic problems that arise under implied warranty theory when a buyer’s “particular purpose” is the same as the good’s “ordinary purp","PeriodicalId":430410,"journal":{"name":"LSN: Regulation of Contracting Private Parties (Topic)","volume":"129 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114506887","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}

{"title":"How Contractual Terms Determine Fiduciary Duties: A Two-Stage Process","authors":"Derek Whayman, David Gibbs","doi":"10.53386/nilq.v70i2.263","DOIUrl":"https://doi.org/10.53386/nilq.v70i2.263","url":null,"abstract":"The determination of the scope of the fiduciary duty of loyalty, when created by contract, is not a unitary process. It is raised following a multi-factorial enquiry, which considers the nature of the engagement, in a first stage. Here, no single factor is conclusive. It is then, in a separate, second stage, reduced by qualifying contractual terms, which are applied almost strictly logically. This second stage uses the contractual doctrines of interpretation and implication. However, since it is a form of the fiduciary doctrine of authorisation, those contractual doctrines are modified according to fiduciary principles. We argue this follows from the underlying nature of the fiduciary obligation as a way of resolving its internal tensions. While this division has not yet been fully recognised in the cases, the courts have been inching towards it. However, not fully recognising this inevitable division and eliding the two stages has led to defective reasoning and outcomes.","PeriodicalId":430410,"journal":{"name":"LSN: Regulation of Contracting Private Parties (Topic)","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123620953","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}

{"title":"EU Financial Regulation, Contract Law and Sustainable Consumer Finance","authors":"O. Cherednychenko","doi":"10.5040/9781509928385.ch-004","DOIUrl":"https://doi.org/10.5040/9781509928385.ch-004","url":null,"abstract":"The post-crisis era presents major new challenges for the EU legislator in terms of effectively safeguarding the public and private interests in the realm of consumer finance in an increasingly digital environment. New and innovative ways of addressing tensions and contradictions between the common good and individual preferences of market actors in the retail financial markets are needed in order to be able to close the gap between consumer finance and society. However, at present, the efforts to develop workable solutions are seriously hampered by the existence of another gap – the gap between financial regulation and contract law in the current European policy discourse and legal scholarship. In the context of EU law-making, this gap manifests itself, in particular, in a contradictory policy agenda for the retail financial markets, insufficient attention to contract practice, and a lack of a coherent and effective enforcement strategy. While the effectiveness of EU financial regulation in the prudential and conduct of business domains depends on a broader legal framework that often reaches far beyond its regulatory ambit, the post-crisis legal matrix for consumer finance is developing in a piecemeal fashion without a clear and coherent vision of consumer financial contracts for the current millennium. In order to reduce the gap between financial regulation and contract law in the EU policy discourse, this chapter has suggested to better integrate the ‘contract law’ dimension of consumer finance into the assessment of existing and new regulatory measures in this area on the basis of a novel concept of sustainable consumer financial contracts. Such an approach fits into the EU's Better Regulation agenda and its sustainable development strategy, which provide an opportunity to critically rethink the role of contract law in the current regulatory landscape, both in relation to standard-setting and enforcement.","PeriodicalId":430410,"journal":{"name":"LSN: Regulation of Contracting Private Parties (Topic)","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124083747","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}

{"title":"Contract Interpretation Regimes","authors":"Dan Wielsch","doi":"10.1111/1468-2230.12375","DOIUrl":"https://doi.org/10.1111/1468-2230.12375","url":null,"abstract":"Freedom of contract requires the integrity of social institutions that ensure the preconditions for private autonomy. This has been largely ignored by a private law doctrine that works on the assumption of the state being the supplier of background justice. The article argues for an institutional turn in contract interpretation. Depending on whether contracts can link up to existing conventions or have to create their institutional context in the first place, courts may apply either an ‘institution‐preserving interpretation’ or an ‘institution‐creating interpretation’. This implies the need to refrain from following universal rules of contractual interpretation. Rather, legal doctrine should focus on the development of sector‐specific standards of interpretation and on support for private legal regimes that ensure socially reflexive constructions of contracts.","PeriodicalId":430410,"journal":{"name":"LSN: Regulation of Contracting Private Parties (Topic)","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125315287","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}

{"title":"Minor’s Liability in Contract: An Overview","authors":"N. Jain","doi":"10.2139/ssrn.3865120","DOIUrl":"https://doi.org/10.2139/ssrn.3865120","url":null,"abstract":"In the midst of globalization and liberalization fever, the people are grooming with wide-range of information even before the age of majority. However, the Indian Contract Act envisages that the minors are incompetent to hold any form of contracts. This paper is concern only with minor in contract . A person who has not attained the age of majority is a minor. Therefore the competency of the parties to a contract is most essentials ingredients of a contract. With some exceptions, an agreement made by a minor is voidable. How far a minor would liable under contract for necessaries or services to provide the minor for is livelihood. This article also deals when the minor is liable under various legislations in India with some comparison with English Law here and there with judicial decisions both English law and Indian law plus ends with conclusion and recommendation.","PeriodicalId":430410,"journal":{"name":"LSN: Regulation of Contracting Private Parties (Topic)","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116808362","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}

{"title":"Comparative Analysis of the Laws of Delaware and U.K Company Law on Enforcement of Pre-Incorporation Contracts","authors":"Oluwadara Omolaja","doi":"10.2139/ssrn.3117638","DOIUrl":"https://doi.org/10.2139/ssrn.3117638","url":null,"abstract":"A corporation, though regarded as an independent person in the eyes of law , never materializes by itself. Behind every company there are persons or association of persons who strive to actualize the being of a company. These persons are most times referred to as promoters. A promoter is “one who undertakes to form a company with reference to a given project, and who takes the necessary steps to accomplish that purpose.” A promoter, saddled with the responsibility of bringing the company into existence , may enter into certain agreements, or service contracts on behalf of the yet formed company, in order for the company when formed to have a smooth sail. These types of contracts are called “Pre-incorporation Contracts”. Example of such contracts include stock subscription agreement, Directors service contracts, contract for payment of promoters expenses, joint venture agreements, shareholders agreement. Pre-incorporation contracts perform a valuable function. By permitting valid and binding legal commitments with third parties, nascent companies are able to secure significant and sometimes essential services necessary to become a fully capitalized and stable corporation. There are, however, significant problems that plague pre-incorporation contracts, such as the spectre of fraud by entrepreneurs and promoters, as well as the possibility of pre-incorporation commitments being disregarded or voided after the fact. These problems give rise to certain legal issues and questions which include, could the company ratify or adopt a pre-incorporation contract so as to become liable upon it?; if the company cannot, were those who acted for the company before its incorporation personally liable on the contracts made by them? In these situations, parties look to legal statutes and case laws to determine the enforceability of such pre-incorporation contract, liability of parties if any, remedy available for parties to the contracts, and finally the issue of who bears the risk of loss. The age long binding authorities on pre-incorporation contracts were the common doctrines. The common law position on pre-incorporation contracts, were mostly based on principles of privity of contract and law of agency. However various jurisdictions have enacted their laws and have promulgated legal principles bothering on pre-incorporation contracts through case law and statues . For example, the state of Delaware, tackles legal issues arising from pre-incorporation contracts through case laws. It is safe to state that there is no outright statutory provision in Delaware laws with regards to pre-incorporation contracts. However under the UK laws, pre-incorporation contracts seem to be mostly governed by statute. This paper compares how the United States and United Kingdom approach the law of pre-incorporation contracts, to see which framework is more efficient. Part I of this paper examines the general landscape of pre-incorporation contracts (reference being made to the comm","PeriodicalId":430410,"journal":{"name":"LSN: Regulation of Contracting Private Parties (Topic)","volume":"79 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-01-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129290018","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}