CONTROLLING CONTRACTUAL DISCRETION

2013 ◽  
Vol 72 (1) ◽  
pp. 65-90 ◽  
Author(s):  
Richard Hooley
Keyword(s):  
Common Law ◽  
Good Faith ◽  
Reasonable Person ◽  
Discretionary Powers ◽  
Do So ◽  
The Way

AbstractThis paper identifies the source, content and limits of the controls that might be imposed by a court on the way a party exercises discretionary powers conferred under the terms of a contract. It is argued that such controls boil down to a requirement of “good faith”, in the sense that the party exercising the discretion must do so honestly, and that this can be tested by asking whether the decision is one that no reasonable person acting reasonably could have reached in the circumstances. It is suggested that a similar requirement should apply when a contracting party exercises a right to terminate for breach, whether at common law or under a termination clause.

The Companies Ordinance (Amendment) (No. 17) Law: Effects on the Alteration of the Objects Clause in a Company Memorandum

1982 ◽  
Vol 17 (2) ◽  
pp. 169-196
Author(s):  
Zipora Cohen
Keyword(s):  
Legal Status ◽  
Common Law ◽  
Company Law ◽  
Good Faith ◽  
Special Procedure ◽  
A Company ◽  
Do So

The Companies Ordinance (Amendment) (No. 17) Law, 1980, (hereinafter referred to as Amendment no. 17) has fundamentally reformed the legal status of the objects clause of a company memorandum. It is no exaggeration to say that this amendment constitutes the greatest reform effected in company law in Israel up to the present day.English Common Law regarded the objects clause as defining the capacity of the company, and not only the powers of those acting on its behalf. This approach, formulated at a time when it was impossible to alter the objects clause of the memorandum persisted even after the English legislature relented somewhat and permitted the objects to be altered, albeit with certain restrictions and according to a special procedure. This is still the approach in England today: the objects of the company are viewed as determining its capacity, and therefore, an act done in deviation from the objects is considered void, and cannot be ratified by the company, even if all the members wish to do so. At the same time, the European Communities Act 1972, affords protection to people transacting with the company in good faith, even in the case of a deviation from the objects (sec. 9(1)).

scholarly journals A State of Mind

2014 ◽  
Vol 2 (1) ◽  
pp. 53-77
Author(s):  
Brian J. Pulito ◽  
Nathaniel I. Holland ◽  
Jon C. Beckman
Keyword(s):  
Oil And Gas ◽  
Good Faith ◽  
Bad Faith ◽  
Reasonable Person ◽  
State Of Mind ◽  
The Law ◽  
The Right ◽  
Do So

It has always been the law of trespass mesne profits to an oil and gas estate that a trespasser is liable for the value of the oil and gas that it has produced from the estate to which it trespasses. That value is determined after ascertaining whether the trespasser held an honest belief that he or she had the right to produce oil or gas from the estate upon which it trespassed. In those cases, the trespasser is said to have trespassed in good faith. Conversely, the trespasser acts in bad faith when it knowingly produces oil and gas without the right to do so. The rule is couched subjectively from the perspective of the trespasser and not from the view of a reasonable person in the same position as the trespasser.

1. Introduction to the Study of Contract Law

2021 ◽  
pp. 1-24
Author(s):  
André Naidoo
Keyword(s):  
Common Law ◽  
Classical Model ◽  
Contract Law ◽  
Good Faith ◽  
Relational Contracts ◽  
Reasonable Person ◽  
The Law ◽  
Default Rules

This introductory chapter provides an overview of contract law and its application. A contract is an agreement made with intention that it will be legally enforceable. Contract law concerns issues regarding the formation of contracts; the sources, interpretation, and regulation of terms; when a breach takes place and the resulting consequences; and ways to escape a contract through vitiating factors, mistake, or frustration. The parties’ intentions are determined using an objective approach based on the standard of the reasonable person. A lot of contract law can be understood as default rules to apply when the parties have not been clear enough about their intentions. The law of contract also concerns foundational principles and mainly consists of common law rules. Many cases still give effect to the values of the classical model, which is based on the freedom and sanctity of contract, and a view that contracting parties are self-interested. The most significant recent development away from the classical model is the recognition of relational contracts and an implied obligation to act in good faith.

The Right to Come and Go

2020 ◽  
Vol 38 (3) ◽  
pp. 555-570
Author(s):  
Miranda Spieler
Keyword(s):  
Common Law ◽  
Legal Writing ◽  
Public Rights ◽  
To Come ◽  
The Right ◽  
Do So ◽  
The Way

Other participants in this forum will have addressed the way American common law shaped the meaning of public rights in postbellum Louisiana. Here I expand on Rebecca Scott's intuition about the transnational character of Louisiana's 1868 Constitution. I do so by suggesting a resonance between French legal writing and the Louisianan understanding of public rights. The innovative spirit of Edward Tinchant becomes all the more striking when his ideas are put into conversation with the language of rights in postrevolutionary France.

scholarly journals A DIRECTOR'S DUTY TO CONFESS: A MATTER OF GOOD FAITH?

2007 ◽  
Vol 66 (2) ◽  
pp. 348-364 ◽  
Author(s):  
Lusina Ho ◽  
Pey-Woan Lee
Keyword(s):  
Common Law ◽  
Good Faith ◽  
Independent Source ◽  
Company Directors ◽  
Per Se ◽  
English Law ◽  
Specific Duty ◽  
A Company ◽  
Disclosure Obligations ◽  
Do So

In common law jurisdictions, there has been considerable academic and judicial discussion of the duties of company directors generally. In contrast, relatively little ink has been spent on the specific duty, if any, of a company director to disclose his own misconduct (in the civil realm) to the company, even less so on the nature and basis of such a duty. This is unsurprising given the very restrictive approach to disclosure obligations in English law. Thus, while a director may in loose terms be said to be under a “duty” to disclose interests that conflict with the company's, such disclosure only serves the purpose of relieving him from liability, and failure to do so per se has not been regarded as an independent source of liability.

Emerson's Memory Loss

2017 ◽  
Author(s):  
Christopher Hanlon
Keyword(s):  
William James ◽  
Memory Loss ◽  
Margaret Fuller ◽  
Final Phase ◽  
Important Work ◽  
The Social ◽  
The Many ◽  
The One ◽  
Do So ◽  
The Way

Emerson’s Memory Loss is about an archive of texts documenting Emerson’s intellectual state during the final phase of his life, as he underwent dementia. It is also about the way these texts provoke a rereading of the more familiar canon of Emerson’s thinking. Emerson’s memory loss, Hanlon argues, contributed to the shaping of a line of thought in America that emphasizes the social over the solipsistic, the affective over the distant, the many over the one. Emerson regarded his output during the time when his patterns of cognition transformed profoundly as a regathering of focus on the nature of memory and of thinking itself. His late texts theorize Emerson’s experience of senescence even as they disrupt his prior valorizations of the independent mind teeming with self-sufficient conviction. But still, these late writings have succumbed to a process of critical forgetting—either ignored by scholars or denied inclusion in Emerson’s oeuvre. Attending to a manuscript archive that reveals the extent to which Emerson collaborated with others—especially his daughter, Ellen Tucker Emerson—to articulate what he considered his most important work even as his ability to do so independently waned, Hanlon measures the resonance of these late texts across the stretch of Emerson’s thinking, including his writing about Margaret Fuller and his meditations on streams of thought that verge unto those of his godson, William James. Such ventures bring us toward a self defined less by its anxiety of overinfluence than by its communality, its very connectedness with myriad others.

Finding a Pastoral Idiom

2018 ◽  
Author(s):  
Mathilde Skoie
Keyword(s):  
Foreign Language ◽  
Language Politics ◽  
Rural And Urban ◽  
Do So ◽  
The Way

This chapter introduces yet another European ‘repossession’ of Virgil that generally remains outside the scope of most volumes on translation and reception. Skoie focuses on three Norwegian translations of Virgil’s Eclogues and analyses the way they exhibit tendencies towards two complementary processes that have been labelled, in recent theories of translation, as ‘domestication’ and ‘foreignization’; and they do so as the language of translation becomes politicized and engaged in debates about Norwegian identity. Skoie explores the use of Virgilian pastoral idiom in a foreign language and the juxtaposition between rural and urban voices in the context of language politics.

Contract Formation in Hong Kong

2018 ◽  
Author(s):  
Lusina HO
Keyword(s):  
Hong Kong ◽  
Social Context ◽  
Common Law ◽  
General Rule ◽  
Good Faith ◽  
Local Context ◽  
General Duty ◽  
Contract Formation ◽  
Formal Requirement ◽  
The Law

This chapter examines the law on contract formation in Hong Kong which is closely modelled on the English common law but adapts the English solutions to the local context if and when required. The test for ascertaining the parties’ meeting of the minds is objective, the agreement (an offer with a matching acceptance) must be certain, complete, and made with the intention to create legal relations—the latter being presumed to be present in a commercial context and absent in a familial or social context. Offers are freely revocable although the reliance of the offeree is protected in exceptional circumstances. Acceptances become effective as soon as they are dispatched. In the ‘battle of forms’ scenario, the Hong Kong courts follow the traditional ‘last-shot’ rule. There is no general duty to negotiate in good faith, and even agreements to negotiate in good faith are normally unenforceable for lack of certainty. As a general rule, contracts can be validly made without adhering to any formal requirement. Online contracts will normally be valid and enforceable; the formation of such contracts is governed by common law as supplemented by legislation.

Fiduciary Principles in Contemporary Common Law Systems

2019 ◽  
pp. 564-582
Author(s):  
Matthew Conaglen
Keyword(s):  
United States ◽  
Common Law ◽  
The United States ◽  
Good Faith ◽  
Fiduciary Duty ◽  
Standards Of Care ◽  
Duty Of Care ◽  
Fiduciary Duties ◽  
Similarities And Differences ◽  
Fiduciary Relationships

This chapter examines the principles of fiduciary doctrine that are found in contemporary common law systems. More specifically, it considers the current similarities and differences between various jurisdictions such as England, Australia, Canada, and the United States. The similarities focus on the duties of loyalty, care and skill, and good faith, as well as when fiduciary duties arise and the kinds of interests that are protected by recognition of fiduciary relationships. The chapter also discusses the issue of differences between various jurisdictions with regard to the duty of care and skill before concluding with an analysis of differences between remedies that are made available in the various contemporary common law jurisdictions when a breach of fiduciary duty arises. It shows that the regulation of fiduciaries appears to be reasonably consistent across common law jurisdictions and across various types of actors, even as such actors are expected to meet differing standards of care. Statute plays a key role in the regulation of various kinds of fiduciary actors, especially corporate directors.

The Coalition's Plan to Regulate Industrial Relations

1993 ◽  
Vol 4 (1) ◽  
pp. 1-26 ◽  
Author(s):  
Braham Dabscheck
Keyword(s):  
Common Law ◽  
Industrial Relations ◽  
Good Faith ◽  
The Common ◽  
Industrial Conflict ◽  
The Law

In October 1992 the federal coalition released Jobsback, a statement of its industrial relations policies. The article situates Jobsback in the context of the evolution of the coalition's industrial relations policies since the Fraser years, outlines its major features, and provides a critique. Jobsback erects a new regulatory schema under a banner of deregulation. Three key elements are contained in Jobsback. They are tribunal avoidance and the use of the common law, legislatively imposed employment rules to ‘aid’ the transition from an award to a non-award system, and enterprise confinement. The article draws attention to the coalition's views concerning industrial conflict, constitutional issues, transitional problems associated with establishing legislatively imposed workplace rules, minima in workplace agreements, the Office of the Employee Advocate, equality before the law and good faith bargaining.

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