2. Objectivity in contract law

2021 ◽  
pp. 12-20
Author(s):  
Paul S. Davies
Keyword(s):  
Contract Law ◽  
Objective Test ◽  
Reasonable Person ◽  
Objective Meaning ◽  
The Way

This chapter provides an overview of the concept of objectivity. In contract law, the intentions of parties are generally judged by their words and conduct and their ‘objective’ meaning. This is known as the ‘objective test’. The contents of a contract are determined objectively. The best evidence that a term has been incorporated into a contract and that a contract is binding is through the parties’ signatures, although entirely oral contracts are equally possible. Contractual communications, whether oral or written, are generally to be understood in the way that a reasonable person in the position of the recipient would have understood them.

2. Objectivity in contract law

2018 ◽  
Author(s):  
Paul S. Davies
Keyword(s):  
Contract Law ◽  
Objective Test ◽  
Reasonable Person ◽  
Objective Meaning ◽  
The Way

This chapter provides an overview of the concept of objectivity. In contract law, the intentions of parties are generally judged by their words and conduct and their ‘objective’ meaning. This is known as the ‘objective test’. The contents of a contract are determined objectively. The best evidence that a term has been incorporated into a contract and that a contract is binding is through the parties’ signatures, although entirely oral contracts are equally possible. Contractual communications, whether oral or written, are generally to be understood in the way that a reasonable person in the position of the recipient would have understood them.

4. Infringement of copyright

2019 ◽  
pp. 73-104
Author(s):  
Stavroula Karapapa ◽  
Luke McDonagh
Keyword(s):  
Strict Liability ◽  
Copyright Infringement ◽  
Objective Test ◽  
Reasonable Person ◽  
The Public ◽  
Mental Element ◽  
What Matters

This chapter focuses on the two types of copyright infringement within the CDPA 1988: primary infringement and secondary infringement. In primary infringement, the defendants are directly involved in copying, performing, and issuing to the public the copyright work, whereas secondary infringement involves people who deal with infringing copies, or facilitate such copying or other activities that are restricted by copyright. Besides this difference that has to do with the scope of rights, there is also difference on the mental element. Unlike primary infringement that does not require knowledge or intention to infringe on the part of the alleged infringer and is hence subject to strict liability, secondary infringement occurs where the defendant knew or had reason to believe that activities in question are wrongful. This is assessed on the basis of an objective test, namely what matters is what a reasonable person would have thought in the relevant circumstances.

Contract as Promise: Lessons Learned

2019 ◽  
Vol 20 (2) ◽  
pp. 367-379
Author(s):  
Charles Fried
Keyword(s):  
Twentieth Century ◽  
Contract Theory ◽  
Choice Theory ◽  
Contract Law ◽  
Lessons Learned ◽  
Self Determination ◽  
Theory Approach ◽  
The Law ◽  
The Way

Abstract In The Choice Theory of Contracts, Hanoch Dagan and Michael Heller state that by arguing “that autonomy matters centrally to contract,” Contract as Promise makes an “enduring contribution . . . but [its] specific arguments faltered because [they] missed the role of diverse contract types and because [it] grounded contractual freedom in a flawed rights-based view. . .. We can now say all rights-based arguments for contractual autonomy have failed.” The authors conclude that their proposed choice theory “approach returns analysis to the mainstream of twentieth-century liberalism – a tradition concerned with enhancing self-determination that is mostly absent in contract theory today.” Perhaps the signal flaw in Contract as Promise they sought to address was the homogenization of all contract types under a single paradigm. In this Article, I defend the promise principle as the appropriate paradigm for the regime of contract law. Along the way I defend the Kantian account of this subject, while acknowledging that state enforcement necessarily introduces elements — both normative and institutional — for which that paradigm fails adequately to account. Of particular interest and validity is Dagan and Heller’s discussion of contract types, to which the law has always and inevitably recurred. They show how this apparent constraint on contractual freedom actually enhances freedom to contract. I discuss what I have learned from their discussion: that choice like languages, is “lumpy,” so that realistically choices must be made between and framed within available types, off the rack, as it were, and not bespoke on each occasion. I do ask as well how these types come into being mutate, and can be deliberately adapted to changing circumstances.

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.

scholarly journals Aspek hukum kontrak dagang via internet (cyberspace transactions) dalam perspektif sistem hukum Islam

2010 ◽  
Vol 10 (2) ◽  
pp. 123
Author(s):  
Wijayanto Setiawan
Keyword(s):  
Consensus Statement ◽  
Islamic Law ◽  
Contract Law ◽  
Legal Aspects ◽  
The Internet ◽  
Business Transactions ◽  
Object Based ◽  
The Way

Trade contracts via the internet (cyberspace transactions) or e-commerce or in other terms is a necessity inthe development of cyberspace in the last  ten decades. In terms of the applicable legal aspects, contractstrade via the internet is having a substantial difference with the conventional contract law. From theviewpoint of Islamic Law (fiqh), the implementation of e-commerce business transactions can besamed with al-sala>m transactions in the way of payment and delivery of commodities which serve as theobject of the transaction. Transactions in e-commerce over the Internet can be aligned with the principlesof the existing transaction in the transaction al-salam, especially relating to the parties involved in thetransaction, the consensus statement and transaction through a transaction object. Based on thesestudies, the commercial transactions over the Internet is allowed as long as meet the principles of thecontract (‘aqad) in Islam, namely: (1) the parties involved in implementing the contract with proves goodand sincerity; (2) the process of conveying statements of the consensus between party is clear and notconflicting with shar’i; and (3) the object of transactions (goods or services) is something that is halal.

6. Mistake

Contract Law ◽  
2018 ◽  
Author(s):  
Mindy Chen-Wishart
Keyword(s):  
Contract Law ◽  
The Other ◽  
Objective Test ◽  
Common Mistake ◽  
Other Hand ◽  
Mistaken Assumption

A party who enters a contract on the basis of a mistaken assumption as to background fact can realistically complain that he or she should not have to take the normal responsibility for his or her apparent consent. On the other hand, the objective test of intentions renders mistakes irrelevant to the validity of contracts except in certain exceptional circumstances. The chapter explores how contract law balances these competing norms. It addresses the following questions: (1) When can a claimant escape a contract on the ground of a unilateral mistake as to terms, the nature of the document, or the other party’s identity? (2) When can a contract be rectified to correct a common mistake in recording it? (3) When can a claimant escape a contract on the ground of his or her mistaken assumption about the relevant facts? (4) What is the justification for any relief? (5) Is the current law satisfactory, and if not, how might it be developed?

2. Agreement

Contract Law ◽  
2018 ◽  
Author(s):  
Mindy Chen-Wishart
Keyword(s):  
Contract Law ◽  
Mirror Image ◽  
Objective Test

How does contract law determine whether the parties have committed to the contract and what each has committed to? This chapter discusses the following: the objective test of intentions; offer and acceptance; termination of the offer; assessment of the mirror image approach; certainty; intention to create legal relations; and restitution for benefits conferred in anticipation of contracts that do not materialise.

Mental Incapacity Doctrines in Criminal Law

2012 ◽  
Vol 15 (1) ◽  
pp. 1-31 ◽  
Author(s):  
Arlie Loughnan
Keyword(s):  
Criminal Law ◽  
Reasonable Person ◽  
Evaluative Inquiry ◽  
The Law ◽  
The Way

The way in which mental incapacity in criminal law has been approached to date has not produced a thorough understanding of it. The idea that mental incapacity's chief relevance in criminal law is as a basis for exculpation dominates the scholarship—both doctrinal and philosophical—on mental incapacity. In an effort to advance scholarly understanding of this area of criminal law, this article provides a reconstruction of the legal terrain concerned with mental incapacity—organized as mental incapacity doctrines, a subset of which is exculpatory. In my reconstruction, what unites the relevant aspects of the law is that each doctrine imagines an abnormal subject of the law, and where the doctrines are exculpatory, the evaluative inquiry is not indexed to the reasonable person. This reconstruction of mental incapacity in criminal law—as mental incapacity doctrines—cuts across existing categorizations of this terrain and, as such, offers a rethinking of this area of the criminal law. This reconstruction permits a reconceptualization of the role of mental incapacity in criminal law: it becomes clear that mental incapacity is the basis for doctrines which perform a multiplicity of roles—inculpation, imputation, and a procedural role—beyond exculpation.

scholarly journals Quelques réflexions à propos du document de la C.R.D. traitant de l'homicide

2005 ◽  
Vol 26 (3) ◽  
pp. 787-798
Author(s):  
Antoine Manganas
Keyword(s):  
Vulnerable Population ◽  
Law Reform ◽  
Motor Vehicles ◽  
Financial Resources ◽  
Objective Test ◽  
Critical Approach ◽  
Reasonable Person ◽  
Spare Time ◽  
Special Category ◽  
Self Defence

The present study is a critical approach to the Canada Law Reform Commission document concerning homicide. This study deals with two particular aspects of the law of homicide. In the first chapter we suggest the creation of a special category of homicide, the « homicide passionnel », for the following reasons : first of all the substantive defences, like intoxication, self-defence, diminished responsibility and provocation are too narrow. Especially with provocation, the application of the objective test is detrimental to the more vulnerable population which lacks educational and financial resources. Secondly, we cannot compare the robber who kills by using his weapon with the person who kills in a state of excitement, jealousy or anger. Besides, many foreign laws have recognized this category of « hot-blood » homicide. So, we think that is time for Canada to abolish the defence of provocation (s. 215 Cr. C.) and create this specific offence. In the second chapter, we suggest criminalization of homicide by negligence. Actually, we can see the difficulty judges have in convicting someone for criminal negligence when the death of a person is due to trafic « accident ». Many foreign criminal codes have created this offence. We find it fair to impose the duty of the reasonable person on those who take certain risks by using motor vehicles or other machines for their benefit or spare time.

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