A Theory of Contract Law: What Meaning and for What Purpose?

Each of the two parts of Peter Benson’s stimulating book raises an important epistemological question. In the first part, the aim is to search for the “true” theory of contract, the one that best explains the rules and doctrines of general contract law. In the second part, the author seeks to convince that his theory is the best one, in the sense that it is the one that provides the most appropriate moral basis in a liberal democratic society; in other words, the one that allows the greatest “justice” in transactions. A third formidable epistemological question then arises: whether “truth” and “justice” are identical.

The Place of Contract for Digital Thing in Latvian Contract Law Within the Context of the Consumer Sale Directives 2019

The article aims to explore the place of contract for digital thing (i.e., a good with digital elements; digital content; and digital service) from the point of view of Latvian contract law considering the recently adopted Consumer Sale Directives 2019 (Directives 2019/770 and 2019/771). The topicality of the article’s theme is rooted in transposition of these directives into Latvian national law. On the one hand, it is necessary to find a proper place for classification of contract for a digital good considering approaches and contents of Latvian contract law for the appropriate understanding of this contract within Latvian contract law and, speaking broadly, Latvian civil law. On the other, the transposition of these directives would mean that digital goods for nonconsumers will remain without explicit regulation because these directives are intended to be transposed into consumer rights protection law being as lex specialis without introducing any amendments into general contract law. At the beginning, the present article provides an overview of the place of contract for a digital thing before transposition of the Consumer Sale Directives 2019 into Latvian consumer rights protection law, i.e., in the current regulation of Latvian contract law. The article continues with analysis of the expected place of contract for a digital thing after the currently intended transposition of these directives. Afterwards the article addresses the consequences of that transposition. The article concludes with summary following the discussion contained therein.

The Regulation of Unfair Terms and Consumer Protection in Japan

This chapter examines how Japanese contract law deals with extremely one-sided, onerous, or otherwise unfair terms, such as exclusions or limitations of liability, penalty clauses, or restraint of trade clauses. It discusses the overt judicial control of such terms under specific legislation, sometimes targeted exclusively at standard terms or consumer contracts. It also analyses how the Japanese courts have exercised a more indirect control by employing traditional general contract law doctrines, such as public policy, good faith, interpretation, or the rules on procedural fairness, in order to protect parties against the imposition of unfair terms. A number of hypothetical clauses are analysed to illustrate how Japanese courts regulate unfair contract terms in practice.

The Regulation of Unfair Terms in Indian Contract Law: Past, Present, and Future

This chapter examines how Indian contract law deals with extremely one-sided, onerous, or otherwise unfair terms, such as exclusions or limitations of liability, penalty clauses, or restraint of trade clauses. It discusses the overt judicial control of such terms under specific legislation, sometimes targeted exclusively at standard terms or consumer contracts. It also analyses how the Indian courts have exercised a more indirect control by employing traditional general contract law doctrines, such as contract formation and interpretation or the rules on procedural fairness, in order to protect parties against the imposition of unfair terms. A number of hypothetical clauses are analysed to illustrate how Indian courts regulate unfair contract terms in practice.

The Regulation of Unfair Terms and Consumer Protection in Thailand

The chapter gives an account of consumer protection in Thailand and, more specifically, how Thai contract law deals with extremely one-sided, onerous, or otherwise unfair terms, such as exclusions or limitations of liability, penalty clauses, or restraint of trade clauses. It discusses the overt judicial control of such terms under the 1997 Unfair Contract Terms Act and other protective mechanisms under specific consumer legislation. It also analyses how the Thai courts have exercised a more indirect control by employing traditional general contract law doctrines, including the rules on procedural fairness, in order to protect parties against the imposition of unfair terms. Empirical evidence is provided to show that effective overall consumer protection has been established since the 1990s.

Regulation of Unfair Terms under Korean Law

This chapter examines how Korean contract law deals with extremely one-sided, onerous, or otherwise unfair terms, such as exclusions or limitations of liability, penalty clauses, or restraint of trade clauses. It discusses the overt judicial control of such terms under specific legislation, sometimes targeted exclusively at standard terms or consumer contracts. It also analyses how the Korean courts have exercised a more indirect control by employing traditional general contract law doctrines, such as public policy, good faith, interpretation, or the rules on procedural fairness, in order to protect parties against the imposition of unfair terms. A number of hypothetical clauses are analysed to illustrate how Korean courts regulate unfair contract terms in practice.

Contract Terms in Hong Kong

This chapter examines three closely connected issues in defining the contents of contracts in Hong Kong: first, the approaches adopted in interpreting the meaning of agreed contractual terms and, second, to what extent additional terms are implied to supplement the express terms. It discusses the underlying philosophy of interpretation with regard to the dichotomy of ‘objective’ and ‘subjective’ approaches; it details the various interpretative aids, such as customs, usages, the commercial background, and the negotiations of the parties; and it shows how Hong Kong law resolves the tension between literalist and contextualist approaches to interpretation. A number of hypothetical scenarios illustrate how Hong Kong courts deal with issues of contractual interpretation and gap-filling in practice. Third, this chapter examines how Hong Kong law deals with extremely one-sided, onerous, or otherwise unfair terms, such as exclusions or limitations of liability, penalty clauses, or restraint of trade clauses. It discusses the overt judicial control of such terms under specific legislation, sometimes targeted exclusively at standard terms or consumer contracts. It also analyses how the courts have exercised a more indirect control by employing traditional general contract law doctrines, such as contract formation and interpretation or the rules on procedural fairness, in order to protect parties against unfair terms. Hypothetical cases are discussed to illustrate how unfair contract terms are regulated in practice.

Regulating Unfair Terms and Consumer Protection under Taiwan Law

This chapter examines how the contract law of Taiwan responds to extremely one-sided, onerous, or otherwise unfair terms, such as exclusions or limitations of liability, penalty clauses, or restraint of trade clauses. It discusses the overt judicial control of such terms under specific legislation, sometimes targeted exclusively at standard terms or terms in consumer contracts. Attention is also paid to the enforcement mechanisms for measures of consumer protection. The chapter further analyses how the Taiwanese courts have exercised a more indirect control by employing traditional general contract law doctrines, including the rules on procedural fairness, in order to protect parties against the imposition of unfair terms. A number of hypothetical clauses are analysed to illustrate how Taiwanese courts regulate unfair contract terms in practice.

Regulating Unfair Terms and Consumer Protection

This chapter examines how Singapore contract law deals with extremely one-sided, onerous, or otherwise unfair terms, such as exclusions or limitations of liability, penalty clauses, or restraint of trade clauses. It discusses the overt judicial control of such terms under specific legislation, sometimes targeted exclusively at standard terms or consumer contracts. It also analyses how the Singapore courts have exercised a more indirect control by employing traditional general contract law doctrines, such as contract formation, interpretation, or the rules on procedural fairness, in order to protect parties against the imposition of unfair terms. A number of hypothetical clauses are analysed to illustrate how Singapore courts regulate unfair contract terms in practice.