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

{"title":"Does Contract Law Need Morality?","authors":"K. Krawiec, Wenhao Liu","doi":"10.2139/ssrn.3069935","DOIUrl":"https://doi.org/10.2139/ssrn.3069935","url":null,"abstract":"In \"The Dignity of Commerce\", Nathan Oman sets out an ambitious market theory of contract, which he argues is a superior normative foundation for contract law than either the moralist or economic justifications that currently dominate contract theory. In doing so, he sets out a robust defense of commerce and the marketplace as contributing to human flourishing that is a refreshing and welcome contribution in an era of market alarmism. But the market theory ultimately falls short as either a normative or prescriptive theory of contract. The extent to which law, public policy, and theory should account for values other than economic efficiency is a longstanding debate. Whatever the merits of that debate, we conclude that contract law does not need morality as envisioned by Oman — a fluid, subjective, and seemingly instinctual approach to the morality of markets.","PeriodicalId":430410,"journal":{"name":"LSN: Regulation of Contracting Private Parties (Topic)","volume":"134 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126637639","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":"Conclusion of the Contract for Multimodal Transport of Goods, in View of the New Legislation in Kosovo","authors":"Nexhat Jashari","doi":"10.2139/ssrn.2808514","DOIUrl":"https://doi.org/10.2139/ssrn.2808514","url":null,"abstract":"This paper will address the general issues concerning the contract of multimodal transport, such as the notion, meaning, terminology, presentation and development, then the elements of the contract, contract forms, and the manner of concluding the contract.The legal definition of multimodal transport contract is given in the United Nations Convention for International Multimodal Transport of Goods, Article 1, and paragraph 3. This convention defines the contract for multimodal transport as follows: \"The contract for multimodal transport is a contract whereby the multimodal transport operator undertakes, against payment of freight, to perform or to procure the performance of international multimodal transport.For the realization of multimodal transport activity, the participating parties will clearly define their rights and obligations with the contract that they will conclude, for the multimodal transport of goods.The contract for multimodal transport of goods is a special category regulated by the provisions of the above-mentioned Convention, but in certain cases the provisions of national laws, which regulate legal relations between the operator of multimodal transport (MTO) and third parties that he has engaged in the transport process, are applied.Law on Obligational Relationships as lex generalis does not contain special provisions that regulate the multimodal transport contract, but the provisions of this law, regulating the contracts in general and the freight contracts in particular, apply to this contract.","PeriodicalId":430410,"journal":{"name":"LSN: Regulation of Contracting Private Parties (Topic)","volume":"302 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124310095","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":"A Case for Interfering with Freedom of Contract? An Empirically-Informed Study of Bans on Assignment","authors":"H. Beale, L. Gullifer, Sarah Paterson","doi":"10.2139/SSRN.2677321","DOIUrl":"https://doi.org/10.2139/SSRN.2677321","url":null,"abstract":"Do \"bans on assignment\" of trade receivables cause serious problems with receivables financing? Should Government render them ineffective? Two empirical investigations suggest that though there are good reasons for using BoAs, they cause disproportionate problems to SMEs needing to factor their debts, and there is a good case for intervention","PeriodicalId":430410,"journal":{"name":"LSN: Regulation of Contracting Private Parties (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130313653","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":"Comments on the Supreme Court of Canada’s Work in Bhasin v. Hrynew","authors":"J. Berryman","doi":"10.2139/ssrn.3309918","DOIUrl":"https://doi.org/10.2139/ssrn.3309918","url":null,"abstract":"In what follows I make five points that are potential ‘hot spots’, or are implications that flow from the Supreme Court of Canada’s decision in Bhasin v. Hrynew 2014 SCC 71 [hereafter Bhasin]. They are presented in no particular order, but, in making these comments I am reminded of the comment: “He who lives by the crystal ball soon learns to eat ground glass” (Edgar R. Fiedler in The Three Rs of Economic Forecasting-Irrational, Irrelevant and Irreverent).","PeriodicalId":430410,"journal":{"name":"LSN: Regulation of Contracting Private Parties (Topic)","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123218805","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":"Reglas Supletivas Mayoritarias Y El Derecho (Civil) De Contratos: Doctrina Jurídica y Análisis Económico del Derecho (Majoritarian Default Rules in Civil Contract Law: Legal Doctrine and Law & Economics)","authors":"Daniel Monroy","doi":"10.2139/SSRN.2722969","DOIUrl":"https://doi.org/10.2139/SSRN.2722969","url":null,"abstract":"Spanish abstract: El presente trabajo posee dos objetivos complementarios: Por un lado (i) basados en una lectura de la doctrina juridica civilista en general, se evidencia la existencia de un criterio normativo al que debiera responder las reglas predeterminadas (reglas supletivas) en el derecho de contratos. Por otro lado, (ii) se contrasta e enriquece dicho criterio normativo con los aportes que sobre el mismo punto ha efectuado el Analisis Economico del Derecho (AED). Asi, la hipotesis del trabajo se expresa en la idea de que, conforme la doctrina juridica civilista, las reglas predeterminadas debieran ser el reflejo de lo regular, lo que tipicamente se acuerda por las partes en cierta situacion. Esta hipotesis – lejos de ser trivial – es coherente con lo sostenido insistentemente por el mainstream del AED en general, y el Teorema de Coase en particular, segun el cual, se sugiere que las reglas predeterminadas debieran reproducir lo que “las partes hubieran querido” (what the parties would have wanted). Las reglas que cumplen este criterio suelen denominarse por el AED como reglas predeterminadas mayoritarias (majoritarian defaults). El trabajo senala tambien algunas implicaciones de la introduccion del paradigma de las reglas predeterminadas mayoritarias en el marco de la doctrina juridica civilista.English abstract: This paper has two complementary objetives: On the one hand (i) and based in the civilian legal doctrine, the aim is to demonstrate the existence of a normative criterion in which should fit the default rules in contract law. On the other hand, (ii) the aim of the paper is to compare and enrich that normative criterion with the ideas supported by the Law and Economics approach (L&E). Thus, the hypothesis of this paper could be expressed in the idea that, according with civilian legal doctrine, can be said that the default rules should reflect what is considered regular, ie what typically the parties would have agreed in a certain situation. This hypothesis, far from trivial, is consistent with the ideas strongly supported by the mainstream of L&E, and especially by the Coase theorem, according to which the default rules should mimic “what the parties would have wanted”. The default rules that meet this criterion are usually called majoritarian defaults. At the end, the paper points out some implications of introduction of the majoritarian default paradigm in the civilian legal doctrine.","PeriodicalId":430410,"journal":{"name":"LSN: Regulation of Contracting Private Parties (Topic)","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132220606","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":"Towards a General Notion of Good Faith in English Contract Law","authors":"Celina Esther V. Cua","doi":"10.2139/ssrn.2297037","DOIUrl":"https://doi.org/10.2139/ssrn.2297037","url":null,"abstract":"English law has time and again denounced the existence of an overriding principle of good faith in its jurisdiction. Contrary to its civil law counterparts in Europe that embrace the general principle of good faith, it has chosen only to apply good faith in a piecemeal fashion and for specific areas. It asserts that the general principle of good faith is totally repugnant to the fundamentals of its legal system that favors creating incremental and specific solutions to legal issues, that adheres to the legal principle of party autonomy and holds sacred legal certainty. It is adamant that it does not need a general principle of good faith for it has its own homegrown rules to ensure that justice, fairness and reasonableness prevails in its legal system. In the recent years, the unwavering position of English law against good faith is continuously being tested. For one, the duty of good faith has found its way into English law via various European Union harmonisation instruments such as The Commercial Agents (Council Directive) Regulations 1993 implementing Council Directive 86/653/EEC and The Unfair Terms in Consumer Contracts Regulation 1999 implementing Council Directive 93/13/EEC, and with more harmonisation efforts expected in the near future with current talks of a European Sales Code and the presence of Principles of European Contract Law by the Lando Commission. For another, the current economy has already shifted from a domestic concern into a global one. Consequently, contracts at this day and age cease to be a national affair. This means that the good faith principle, which exists in most countries with civil and mixed legal systems making up the majority of not only European countries but the rest of the world, will continuously govern or form part of many contracts touching English law whether it likes it or not.Moreover, the growing acceptance of the principle of good faith in other common law countries has attracted many writings by English law scholars in the recent years and this has also inspired recent English court decisions to give good faith a second look or even impute it in contractual obligations. In fact, Longmore LJ expressed his sentiment to reconsider the House of Lords’ dictum in Walford v. Miles citing Lord Steyn who criticised such narrow approach. Lord Steyn even stated that the principle of good faith is not a world of difference from English law’s doctrine of reasonable expectations of the parties and that duties of good faith, when imposed on the parties, can easily be accommodated by English law. Some authors suggest that English law’s often resort to the implication of terms and other legal doctrines that give more emphasis to party loyalty, the protection of reliance, cooperation, consideration of the other party’s interest, and substantive fairness, signals its movement away from the will theory and thus ready to revive the ethical foundations of contract law existing before the 19th century. With all the for","PeriodicalId":430410,"journal":{"name":"LSN: Regulation of Contracting Private Parties (Topic)","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-06-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116899011","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":"Doctrines of Last Resort","authors":"D. Smith","doi":"10.5040/9781472561275.ch-015","DOIUrl":"https://doi.org/10.5040/9781472561275.ch-015","url":null,"abstract":"The doctrines of good faith and fair dealing, fiduciary duty, and unjust enrichment are doctrines of last resort because they are activated only when all other potentially applicable commands from constitutions, statutes, regulations, ordinances, common law decisions and contracts have been exhausted. In these circumstances ⎯ where positive law and private ordering are otherwise incomplete ⎯ contracting parties rely heavily on informal social sanctions to protect against opportunism, but the doctrines of last resort reinforce these social sanctions. Rather than regulating all of the deviations and adjustments that are common in contractual relationships, doctrines of last resort constrain extreme deviations from social norms, reinforcing agreements precisely in those contexts where informal social sanctions are weakest.","PeriodicalId":430410,"journal":{"name":"LSN: Regulation of Contracting Private Parties (Topic)","volume":"121 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-01-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131901745","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 Contractual Prohibition on Assignment in Ukraine and Other Legislations in Central and Eastern Europe – A Call for Coherence","authors":"D. Stoyanov","doi":"10.2139/ssrn.2953700","DOIUrl":"https://doi.org/10.2139/ssrn.2953700","url":null,"abstract":"This paper examines the effect of a contractual prohibition on assignment in the light of a future integration of the Ukraine into the European Union and the Single European Market. The approach adopted by the Ukrainian legislator to allow parties to exclude the assignment of receivables is being compared to the provisions of other national legislations in Central and Eastern Europe. A brief comparative overview reveals the need to provide a harmonized approach to the anti-assignment clause. The paper proposes the adoption of the provisions of the Draft Common Frame of Reference with regard to the contractual prohibition on assignment due to its balanced legal approach.","PeriodicalId":430410,"journal":{"name":"LSN: Regulation of Contracting Private Parties (Topic)","volume":"301 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115767810","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":"Can Franchisee Associations Serve as a Substitute for Franchisee Protection Laws?","authors":"R. W. Emerson, Uri Benoliel","doi":"10.2139/ssrn.2177369","DOIUrl":"https://doi.org/10.2139/ssrn.2177369","url":null,"abstract":"The most vital debate in franchise law over the last few decades has focused on whether state or federal law should protect franchisees from the potentially opportunistic behavior of franchisors. Several states, such as California, Massachusetts, and Vermont, are considering the adoption of laws protecting franchisees against franchisor opportunism. At the federal level, several franchisee protections laws have been introduced, but so far all have been rejected.Franchisor advocates suggest that franchisee protection laws are superfluous. Deeply ingrained in franchisor advocates’ opposition to such legislation is the belief that independent franchisee associations, namely trade associations formed by franchisees within a single franchise chain, serve as a sufficient barrier against franchisor opportunism. More specifically, franchisor advocates assume that by collectivizing a large percentage of the franchisees in the franchise system, an independent franchisee association improves the bargaining position of franchisees vis-a-vis franchisors. As a result, the association is assumed to succeed in negotiating contract terms that protect franchisees from franchisor opportunism and thereby eliminate the need for franchisee protection laws. This Article questions the idea that independent franchisee associations can prevent franchisor opportunism and otherwise serve as a substitute for franchisee protection laws. Focusing on the implicit assumption that such associations exist, or at least have the potential to exist, this Article argues that, in most cases, franchisees are unlikely to establish independent franchisee associations in the first place—mainly because under current law the expected costs borne by the franchisee in leading the establishment of an association exceed the expected benefits. That is, as federal and most state laws fail to adequately prohibit the franchisor’s retaliatory termination of the franchise or other reprisals against a franchisee association leader, the probability of such retribution is significant; conversely, the probability that the franchisee will form a successful and sustainable association is very low. First, franchisors often establish, fund, and control a competing franchisee committee, known as the franchisor advisory council, which is likely to reduce considerably the probability that an independent franchisee association will operate successfully. Second, franchisees normally have little incentive to join and actively participate in an already functioning independent franchisee association for several reasons, including franchisee free-riding, franchisee fear of retaliation by franchisors, and economic incentives provided by franchisors to franchisees for not joining such associations.","PeriodicalId":430410,"journal":{"name":"LSN: Regulation of Contracting Private Parties (Topic)","volume":"29 5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127471651","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}