Excusable consent in duress

Legal Studies ◽  
2017 ◽  
Vol 37 (3) ◽  
pp. 418-436
Author(s):  
Alexander F H Loke
Keyword(s):  
Theoretical Basis ◽  
Analytical Framework ◽  
Contract Law ◽  
Value Judgments ◽  
Additional Element ◽  
The Law ◽  
Will Theory

While the illegitimate pressure theory provides a more satisfactory theoretical basis for duress in contract law than the overborne will theory, it insufficiently addresses why a victim who has given deliberated consent should be excused from contractual responsibility. The paper proposes that the additional element of ‘excusable consent’ enhances the current analytical framework: first, by recognising that the law makes value judgments of both the threatening party's actions and the victim's response; secondly, by lightening the burden of the illegitimate pressure element and providing it greater focus; and, thirdly, by providing a better fit for considerations such as ‘no practical alternatives’ that strain the existing framework.

scholarly journals Form, Substance, and Neo-Proceduralism in Comparative Contract Law: Law in Books and Law in Action in New Zealand, England, the United States of America, and Japan

2021 ◽  
Author(s):  
◽  
Luke Richard Nottage
Keyword(s):  
United States ◽  
New Zealand ◽  
United States Of America ◽  
Legal Theory ◽  
Analytical Framework ◽  
The United States ◽  
Contract Law ◽  
Legal Studies ◽  
The Law ◽  
Japanese Law

<p>Part One of this thesis develops the "form-substance" analytical framework proposed by Atiyah and Summers to contrast English and US law generally, comparing also New Zealand and especially Japanese law. From this perspective, it argues that both US and Japanese law prefer distinctly more substantive reasoning, whereas both English and New Zealand law maintain a more formal orientation. Part Two focuses on three areas of contract law, and the development of contract law theory, arguing that the framework helps explain differing approaches adopted in these jurisdictions. Closer attention to the "law in action" as well as the "law in books", however, results in refinements to their analytical framework. It also suggests that "neo-proceduralist" models of law generally, and private law in particular, may be becoming increasingly important in both explaining and justifying developments in all four legal systems. Part Three introduces several of these models, which go beyond "form-substance" dichotomies without necessarily being inconsistent with them. This thesis therefore aims to offer new perspectives in three disciplines: comparative legal studies, contract law, and general legal theory.</p>

scholarly journals Form, Substance, and Neo-Proceduralism in Comparative Contract Law: Law in Books and Law in Action in New Zealand, England, the United States of America, and Japan

2021 ◽  
Author(s):  
◽  
Luke Richard Nottage
Keyword(s):  
United States ◽  
New Zealand ◽  
United States Of America ◽  
Legal Theory ◽  
Analytical Framework ◽  
The United States ◽  
Contract Law ◽  
Legal Studies ◽  
The Law ◽  
Japanese Law

<p>Part One of this thesis develops the "form-substance" analytical framework proposed by Atiyah and Summers to contrast English and US law generally, comparing also New Zealand and especially Japanese law. From this perspective, it argues that both US and Japanese law prefer distinctly more substantive reasoning, whereas both English and New Zealand law maintain a more formal orientation. Part Two focuses on three areas of contract law, and the development of contract law theory, arguing that the framework helps explain differing approaches adopted in these jurisdictions. Closer attention to the "law in action" as well as the "law in books", however, results in refinements to their analytical framework. It also suggests that "neo-proceduralist" models of law generally, and private law in particular, may be becoming increasingly important in both explaining and justifying developments in all four legal systems. Part Three introduces several of these models, which go beyond "form-substance" dichotomies without necessarily being inconsistent with them. This thesis therefore aims to offer new perspectives in three disciplines: comparative legal studies, contract law, and general legal theory.</p>

The Law of Contract

2018 ◽  
Author(s):  
Eva Steiner
Keyword(s):  
Common Law ◽  
World Market ◽  
Contract Law ◽  
The State ◽  
Legal Certainty ◽  
Philosophical Foundations ◽  
The Common ◽  
The Law

This chapter examines the law of contract in France and discusses the milestone reform of French contract law. While this new legislation introduces a fresh equilibrium between the contracting parties and enhances accessibility and legal certainty in contract, it does not radically change the state of the law in this area. In addition, it does not strongly impact the traditional philosophical foundations of the law of contract. The reform, in short, looks more like a tidying up operation rather than a far-reaching transformation of the law. Therefore, the chapter argues that it is questionable whether the new law, which was also intended to increase France's attractiveness against the background of a world market dominated by the Common Law, will keep its promise.

Relaxations of Contractual Privity and the Need for Third Party Rights in Chinese Contract Law

2018 ◽  
Author(s):  
Chen Lei
Keyword(s):  
Direct Action ◽  
Contract Law ◽  
Third Party ◽  
Chinese Law ◽  
The Third ◽  
Right Of Action ◽  
The Law ◽  
The Third Party ◽  
The Right

This chapter examines the position of third party beneficiaries in Chinese law. Article 64 of the Chinese Contract Law states that where a contract for the benefit of a third party is breached, the debtor is liable to the creditor. The author regards this as leaving unanswered the question of whether the thirdparty has a right of direct action against the debtor. One view regards the third party as having the right to sue for the benefit although this right was ultimately excluded from the law. Another view, supported by the Supreme People’s Court, is that Article 64 does not provide a right of action for a third party and merely prescribes performance in ‘incidental’ third party contracts. The third view is that there is a third party right of action in cases of ‘genuine’ third party contracts but courts are unlikely to recognize a third party action where the contract merely purports to confer a benefit on the third party.

Contracts for the Benefit of Third Parties in Japan

2018 ◽  
Author(s):  
Masami Okino
Keyword(s):  
Case Analysis ◽  
Case Law ◽  
Contract Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
German Model ◽  
Recent Debate ◽  
The Law

This chapter discusses the law on third party beneficiaries in Japan; mostly characterized by adherence to the German model that still bears an imprint on Japanese contract law. Thus, there is neither a doctrine of consideration nor any other justification for a general doctrine of privity, and contracts for the benefit of third parties are generally enforceable as a matter of course. Whether an enforceable right on the part of a third party is created is simply a matter of interpretation of the contract which is always made on a case-by-case analysis but there are a number of typical scenarios where the courts normally find the existence (or non-existence) of a contract for the benefit of a third party. In the recent debate on reform of Japanese contract law, wide-ranging suggestions were made for revision of the provisions on contracts for the benefit of third parties in the Japanese Civil Code. However, it turned out that reform in this area was confined to a very limited codification of established case law.

scholarly journals CASTING THE LIGHT OF THE THEORY OF OPPOSITION ONTO HOHFELD'S FUNDAMENTAL LEGAL CONCEPTS

Legal Theory ◽  
2021 ◽  
pp. 1-34
Author(s):  
João Alberto de Oliveira Lima ◽  
Cristine Griffo ◽  
João Paulo A. Almeida ◽  
Giancarlo Guizzardi ◽  
Marcio Iorio Aranha
Keyword(s):  
Conceptual Framework ◽  
Legal Theory ◽  
Analytical Framework ◽  
The Core ◽  
Recent Developments ◽  
The Law ◽  
Opposition Theory ◽  
Legal Concepts ◽  
Number Of Authors

Abstract At the core of Hohfeld's contribution to legal theory is a conceptual framework for the analysis of the legal positions occupied by agents in intersubjective legal relations. Hohfeld presented a system of eight “fundamental” concepts relying on notions of opposition and correlation. Throughout the years, a number of authors have followed Hohfeld in applying the notion of opposition to analyze legal concepts. Many of these authors have accounted for Hohfeld's theory in direct analogy with the standard deontic hexagon. This paper reviews some of these accounts and extends them employing recent developments from opposition theory. In particular, we are able to extend application of opposition theory to an open conception of the law. We also account for the implications of abandoning the assumption of conflict-freedom and admitting seemingly conflicting legal positions. This enables a fuller analysis of Hohfeld's conceptual analytical framework. We also offer a novel analysis of Hohfeld's power positions.

Reform of Contract Law and Business World

2017 ◽  
Vol 13 (4) ◽  
Author(s):  
Mustapha Mekki
Keyword(s):  
Contract Law ◽  
Economic Environment ◽  
Business World ◽  
Legal Standards ◽  
The Law ◽  
Fair Balance

AbstractWith the reform of contract law, will economic players be able to continue to do good business? If the economic environment did not see the reform of the law of obligations as a reform of first urgency, the new law resulting from the ordinance of 10 February 2016 finds a fair balance which should satisfy most economic actors. Admittedly, like any reform, the Ordinance creates new risks: new powers of the judge, multiplication of legal standards, the scope of contractual freedom ... It is then up to the parties, to whom the law assigns more power, to identify its risks and to manage them appropriately by drawing up customized contractual clauses. The success of the reform thus depends on its good reception and its development by practice.

Contract

2005 ◽  
Author(s):  
James Gordley
Keyword(s):  
Twentieth Century ◽  
Legal System ◽  
Common Law ◽  
Contract Law ◽  
Legal Method ◽  
Legal Problems ◽  
Early Twentieth Century ◽  
The Will ◽  
The Law

‘Classical’ contract law was built on a substantive premise about contract law and two premises about legal method. The substantive premise was voluntaristic: the business of contract law is to enforce the will or choice of the parties. The first methodological premise was positivistic: the law is found, implicitly or explicitly, in the decisions of common law judges. The second methodological premise was conceptualistic: the law should be stated in general formulas which can be tested by their coherence. Finally, ‘classical’ contract law reflected an attitude about how best to steer a course — as every legal system must — between strict rules and equitable considerations. Since the early twentieth century, classical contract law has been breaking down. Allegiance to its premises has weakened as has the preference for rigor. At the same time, scholars have found classical law to be inconsistent even in its own terms. Nevertheless, much of it has remained in place faute de mieux while contemporary jurists have tried to see what is really at stake in particular legal problems. This article describes their work.

Introduction

2014 ◽  
Author(s):  
Robert D. Cooter ◽  
Ariel Porat
Keyword(s):  
Social Welfare ◽  
Strict Liability ◽  
Tort Law ◽  
Contract Law ◽  
Private Law ◽  
The Law ◽  
The Cost

This book examines how the law of torts, contracts, and restitution can be improved by showing how private law reduces the cost of accidents, lubricates bargains, and encourages unrequested benefits. It considers the two pervasive rules of tort law that provide incentives for actors to reduce accident costs: strict liability and negligence. It also explains how contract law achieves effiency through the remedy of damages and how restitution law allows benefactors to recover gains that their beneficiaries wrongfully obtained from them. The book makes three central claims: misalignments in tort law should be removed; in contract law, promisee's incentives should be improved; and the law should recognize some right of compensation for those who produce unrequested benefits. Each claim is based on the desire to reform private law and to make it more effective in promoting social welfare.

Sign in / Sign up

Export Citation Format

Share Document