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.

Economics of Contract Law

2017 ◽  
pp. 2-19
Author(s):  
Douglas G. Baird
Keyword(s):  
Contract Theory ◽  
Law And Economics ◽  
Contract Design ◽  
Contract Law ◽  
Specific Performance ◽  
The Law ◽  
Default Rules ◽  
The Relationship

Chapter 1 reviews the evolution of the law and economics of contract over the last 4 decades, beginning with the emergence of the idea of “efficient breach” in the early 1970s. It explores expectation damages, reliance damages, and specific performance, and then goes on to examine the effect that the possibility of renegotiation has on the shape of contract law. It then turns to the idea of contract law as a set of default rules, and discusses the role of contract law in mass markets. It concludes with a discussion of the relationship between the law and economics of contract and the problem of contract design and contract theory.

Prawne aspekty eutanazji w Holandii

2016 ◽  
Vol 14 (3) ◽  
pp. 243-253
Author(s):  
Grzegorz Stefanowicz
Keyword(s):  
The Netherlands ◽  
Assisted Suicide ◽  
Public Authority ◽  
Dutch Society ◽  
On Demand ◽  
Limited Length ◽  
The Law ◽  
Death On Demand ◽  
The Way

This article undertakes to show the way that has led to the statutory decriminalization of euthanasia-related murder and assisted suicide in the Kingdom of the Netherlands. It presents the evolution of the views held by Dutch society on the euthanasia related practice, in the consequence of which death on demand has become legal after less than thirty years. Due attention is paid to the role of organs of public authority in these changes, with a particular emphasis put on the role of the Dutch Parliament – the States General. Because of scarcity of space and limited length of the article, the change in the attitudes toward euthanasia, which has taken place in the Netherlands, is presented in a synthetic way – from the first discussions on admissibility of a euthanasia-related murder carried out in the 1970s, through the practice of killing patients at their request, which was against the law at that time, but with years began more and more acceptable, up to the statutory decriminalization of euthanasia by the Dutch Parliament, made with the support of the majority of society.

The Representation of Mary in the Architecture of Le Corbusier's Chapel at Ronchamp

1999 ◽  
Vol 68 (2) ◽  
pp. 398-416 ◽  
Author(s):  
Flora Samuel
Keyword(s):  
Twentieth Century ◽  
Le Corbusier ◽  
Cult Of Mary ◽  
The Way

In the Fondation Le Corbusier in Paris there is a little guide for pilgrims that was given to the architect when he began work on the pilgrimage chapel of Notre Dame du Haut Ronchamp (1955), probably the most influential yet contentious building of the twentieth century (fig. 1). Within the guide, the section on the cult of Mary has been heavily underlined and in the margin is the word “feminism,” written by Le Corbusier, a very unusual departure for a man of his times. In this article I will examine the role of Mary in the work of Le Corbusier and discuss the way in which she is interpreted in the architecture of Ronchamp.

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.

The Monarchy

2004 ◽  
Author(s):  
Rodney Brazier
Keyword(s):  
Twentieth Century ◽  
British Society ◽  
History Of ◽  
The Law

This chapter examines the role of the monarchy in the history of the British constitution during the twentieth century, investigating how the constitutional power enjoyed by the sovereign gave way to constitutional influence and describing the changes the Parliament made to the law relevant to the Crown. It suggests that, for most of the twentieth century, sovereigns and their closest advisers recognised the continuing need to adapt the institution of monarchy so as to reflect changes in British society, and this involved further erosions in the sovereign's power.

DIGITAL FINANCIAL TOOLS FOR SOCIALIZING PRIVATE LAW

2021 ◽  
pp. 208-224
Author(s):  
Julia S. Kharitonova ◽  
◽  
Larisa V. Sannikova ◽  
Keyword(s):  
Public Relations ◽  
The United States ◽  
Legal Regulation ◽  
Private Law ◽  
Property Relations ◽  
The World ◽  
The Law ◽  
Private Investors ◽  
The Way

Nowadays, the law is being transformed as a regulator of relations. The idea of strengthe-ning the regulatory role of technologies in the field of streamlining public relations is making much headway in the world. This trend is most pronounced in the area of regulation of private relations. The way of such access to the market as crowdfunding is becoming increasingly widespread. The issuing of the so-called secured tokens is becoming popular for both small businesses and private investors. The trust in new ways of attracting investments is condi-tioned by the applied technology - the use of blockchain as a decentralized transparent data-base management system. Under these conditions, there is such a phenomenon as the democ-ratization of property relations. Every individual receives unlimited opportunities to invest via technologies. Thus, legal scholars all over the world face the question about the role of the law and law in these relations? We believe that we are dealing with such a worldwide trend of regulating public relations as the socialization of the law. Specific examples of issuing tokens in Russia and abroad show the main global trends in the transformation of private law. The platformization of economics leads to the tokenization and democratization of property relations. In this aspect, the aim of lawyers should be to create a comfortable legal environment for the implementation of projects aimed at democratizing property relations in Russia. The socialization of private law is aimed at achieving social jus-tice and is manifested in the creation of mechanisms to protect the rights of the weak party and rules to protect private investors. Globalization requires the study of both Russian and foreign law. To confirm their hypothesis, the authors conducted a detailed analysis of the legislation of Russia, Europe and the United States to identify the norms allowing to see the process of socialization of law in the above field. The generalization of Russian and foreign experience showed that when searching for proper legal regulation, the states elect one of the policies. In some countries, direct regulation of ICOs and related emission relations are being created, in others, it is about the extension of the existing legislation to a new changing tokenization relationship. The European Union countries are seeking to develop common rules to create a regulatory environment to attract investors to the crypto industry and protect them. Asian countries are predominantly developing national legislation in isolation from one another, but most of them are following a unified course to encourage investment in crypto assets while introducing strict rules against fraud on financial markets. The emphasis on the protection of the rights of investors or shareholders, token holders by setting a framework, including private law mechanisms, can be called common to all approaches. This is the aim of private law on the way to social justice.

Seeking Reconciliation

2020 ◽  
pp. 88-124
Author(s):  
Arzoo Osanloo
Keyword(s):  
Criminal Law ◽  
Cycle Of Violence ◽  
Considerable Influence ◽  
The Family ◽  
The Law ◽  
The Right ◽  
Legitimate Violence ◽  
Sense Of Power ◽  
The Way

This chapter studies the operations of the Iranian criminal law and analyzes how the procedural administration of the law animates the shariʻa. Iranian criminal laws provide many avenues for victims to forgo retributive sanctioning. But preserving the right of retribution serves several purposes: maintaining the sovereign's monopoly on legitimate violence, giving victims a sense of power, and halting the cycle of violence. The way Iran achieves this comprises an interesting balancing act between maintaining the monopoly over legitimate violence and granting individual victims the right of retribution, which its leaders believe, through their interpretation of the shariʻa, cannot be appropriated by the sovereign. Since the law categorizes intentional murder as qisas and leaves judges with no discretion in sentencing, the judges may use their considerable influence to pressure the family to forgo retribution. The chapter then considers the role of judges and examines how the laws (substantive and procedural) shape their reasoning and discretion in both sentencing and encouraging forbearance.

The Origin of the Judges’ Rules

2020 ◽  
pp. 33-53
Author(s):  
Mike McConville ◽  
Luke Marsh
Keyword(s):  
Twentieth Century ◽  
Critical Issue ◽  
Home Office ◽  
The World ◽  
The Subject ◽  
The Law ◽  
Police Forces

The point at which the liberty of the subject can be subject to interference by force of the law is a critical issue and one reliant on the integrity of judicial oversight. Focusing on the start of the twentieth century, this chapter addresses the discontinuities in the then existing rules relating to the interrogation of suspected persons (embodied by the Judges’ Rules of 1912, whose obscure origins are discussed) and the divergent responses of different police forces to the cautioning and questioning process. From this it explores how the need for closer formal regulation arose and the role of Home Office officials (the very same as those involved in the Adolph Beck case) in drafting the first revision of the Judges’ Rules in 1918 which were to remain in force for almost fifty years. These inapt and inexpertly drafted Rules thereafter laid the foundations for policing regulation in jurisdictions around the world.

5. Consideration and Promissory Estoppel

Contract Law ◽  
2020 ◽  
pp. 142-244
Author(s):  
Ewan McKendrick
Keyword(s):  
Contract Law ◽  
Limited Effect ◽  
The Future ◽  
The Law

The doctrine of consideration is one feature of English contract law that readily distinguishes it from the law of contract in civilian jurisdictions. Its essence is that a promisee cannot enforce a promise unless he has given or promised to give something in exchange for the promise, or unless the promisor has obtained (or been promised) something in return. In other words, there must have been a bargain between the parties. This chapter analyses the current scope of the doctrine of consideration, particularly the rule that consideration must be sufficient but need not be adequate; the pre-existing duty rule and the question whether a promise to pay, or part payment of a debt, is good consideration for the discharge of the entire deb; and the rule that past consideration is not good consideration. It also examines the role of promissory estoppel in contract cases. An estoppel gives (at least limited) effect to a promise that would otherwise be unenforceable, thus the effect of an estoppel may be to supplement, or even supplant, the doctrine of consideration. The chapter concludes with a brief discussion of the future of the doctrine of consideration and, in particular, draws on the critique of consideration developed by Professor Atiyah.

Legalism and English Administrative Law: Comment on Sterett

1992 ◽  
Vol 17 (01) ◽  
pp. 89-100 ◽  
Author(s):  
David Feldman ◽  
Mark Gould
Keyword(s):  
Judicial Review ◽  
Administrative Law ◽  
Recent Issue ◽  
Review Procedure ◽  
The Law ◽  
1960S And 1970S ◽  
The 1960S ◽  
Law Commission ◽  
The Way

In a recent issue of this journal (Volume 15, Number 4, Fall 1990), Susan Sterett examined the role of the Law Commission in the development of English administrative law. She suggested that the Commission mimicked a “peak association” and adopted an “idiom of legalism” in order to justify its reform proposals. This comment disagrees with Sterett on three grounds. First, the role and constitutional position of the Commission is far more complex than Sterett suggests, and this affects the way in which the Commission works. Second, judges and academic lawyers were central to the reform of substantive principles of judicial review in the 1960s and 1970s, making it unnecessary for the Law Commission to act in this field. Finally, it is wrong to ignore the fact that much administrative law occurs outside the judicial review procedure.

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