Reconsidering The Proper Law Of The Contract
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Reconsidering The Proper Law Of The Contract
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Author : Brooke Marshall
language : en
Publisher:
Release Date : 2016
Reconsidering The Proper Law Of The Contract written by Brooke Marshall and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2016 with categories.
This article appraises the choice of law rule that applies where parties have either impliedly chosen, or failed to choose, the law governing their contract. It reconsiders the problems besetting the common law rule, known as the proper law of the contract, that were identified by Australia's Law Reform Commission twenty years ago. While the choice of law rule in Australia remains unchanged, it has undergone significant reform in the European Community and is now the subject of reform at the Hague Conference on Private International Law. Despite these reforms, a comparative analysis reveals that several of the common law problems persist. This article proffers a proposal for Australian legislatures based on the author's refined version of the Draft Hague Principles and the Rome I Regulation. It also suggests that the Hague Conference adopt these refinements. Under this proposal, tacit choice of law is absorbed as a subset of express choice and must be clearly established by the terms of the contract or the circumstances of the case. The probative value of an exclusive jurisdiction agreement will be made apparent in the drafting of the clause on tacit choice of law itself. It is further proposed that, in the absence of choice, the closest connection test be reduced to an escape clause applicable in default of fixed rules tailored to the exigencies of commercial contracting. The reformulated test will be used to ascertain the law of the country most appropriate for determining the issues arising in the case.
The Proper Law Of The Contract
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Author : Ole Lando
language : en
Publisher:
Release Date : 1960
The Proper Law Of The Contract written by Ole Lando and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 1960 with Conflict of laws categories.
Reconsidering Contractual Consent
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Author : Nathan B. Oman
language : en
Publisher:
Release Date : 2018
Reconsidering Contractual Consent written by Nathan B. Oman and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2018 with categories.
Our theoretical approaches to contract law have dramatically over-estimated the importance of voluntary consent. The central thesis of this article is that voluntary consent plays at best a secondary role in the normative justification of contract law. Rather, contract law should be seen as part of an evolutionary process of finding solutions to problems of social organization in markets. Like natural evolution, this process depends on variation and feedback. Unlike natural evolution, both the variation and the feedback mechanisms are products of human invention. On this theory, consent serves two roles in contract law. First, consent makes freedom of contract possible and freedom of contract generates variation in transactional structures. In effect, it creates a store of possible solutions to problems of social organization. Second, consent is one method among several by which "bad" solutions are weeded out and "good" solutions are selected. However, consent is not the only-or in many cases even the primary-feedback mechanism for transactional structures. Hence, in many situations we are comfortable enforcing contracts where consent is formal at best and the voluntariness of contracting parties is open to serious doubt. This is because there are other mechanisms that mitigate against pathological transactional forms. Ultimately "meaningful consent" is not a necessary condition for the normative justification of contractual enforcement. Applying this model to boilerplate contracts explains why we are justified in enforcing agreements where consent may be attenuated and very imperfectly informed. The voluminous criticism of these agreements shares the common assumption that robust voluntary consent is a necessary condition for the normative justification of contract law. This basic assumption, however, is mistaken.
The Proper Law Of A Contract
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Author : John Humphrey Carlile Morris
language : en
Publisher:
Release Date : 1950
The Proper Law Of A Contract written by John Humphrey Carlile Morris and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 1950 with categories.
Contract Law Minimalism
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Author : Jonathan Morgan
language : en
Publisher: Cambridge University Press
Release Date : 2013-11-07
Contract Law Minimalism written by Jonathan Morgan and has been published by Cambridge University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2013-11-07 with Law categories.
Commercial contract law is in every sense optional given the choice between legal systems and law and arbitration. Its 'doctrines' are in fact virtually all default rules. Contract Law Minimalism advances the thesis that commercial parties prefer a minimalist law that sets out to enforce what they have decided - but does nothing else. The limited capacity of the legal process is the key to this 'minimalist' stance. This book considers evidence that such minimalism is indeed what commercial parties choose to govern their transactions. It critically engages with alternative schools of thought, that call for active regulation of contracts to promote either economic efficiency or the trust and co-operation necessary for 'relational contracting'. The book also necessarily argues against the view that private law should be understood non-instrumentally (whether through promissory morality, corrective justice, taxonomic rationality, or otherwise). It sketches a restatement of English contract law in line with the thesis.
Boilerplate
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Author : Margaret Jane Radin
language : en
Publisher: Princeton University Press
Release Date : 2014-11-03
Boilerplate written by Margaret Jane Radin and has been published by Princeton University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2014-11-03 with Law categories.
Why the increasing use of boilerplate is eroding our rights Boilerplate—the fine-print terms and conditions that we become subject to when we click "I agree" online, rent an apartment, enter an employment contract, sign up for a cellphone carrier, or buy travel tickets—pervades all aspects of our modern lives. On a daily basis, most of us accept boilerplate provisions without realizing that should a dispute arise about a purchased good or service, the nonnegotiable boilerplate terms can deprive us of our right to jury trial and relieve providers of responsibility for harm. Boilerplate is the first comprehensive treatment of the problems posed by the increasing use of these terms, demonstrating how their use has degraded traditional notions of consent, agreement, and contract, and sacrificed core rights whose loss threatens the democratic order. Margaret Jane Radin examines attempts to justify the use of boilerplate provisions by claiming either that recipients freely consent to them or that economic efficiency demands them, and she finds these justifications wanting. She argues, moreover, that our courts, legislatures, and regulatory agencies have fallen short in their evaluation and oversight of the use of boilerplate clauses. To improve legal evaluation of boilerplate, Radin offers a new analytical framework, one that takes into account the nature of the rights affected, the quality of the recipient's consent, and the extent of the use of these terms. Radin goes on to offer possibilities for new methods of boilerplate evaluation and control, among them the bold suggestion that tort law rather than contract law provides a preferable analysis for some boilerplate schemes. She concludes by discussing positive steps that NGOs, legislators, regulators, courts, and scholars could take to bring about better practices.
The Choice Of Law Contract
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Author : Maria Hook
language : en
Publisher: Bloomsbury Publishing
Release Date : 2016-09-22
The Choice Of Law Contract written by Maria Hook and has been published by Bloomsbury Publishing this book supported file pdf, txt, epub, kindle and other format this book has been release on 2016-09-22 with Law categories.
This book offers a contractual framework for the regulation of party autonomy in choice of law. The party autonomy rule is the cornerstone of any modern system of choice of law; embodying as it does the freedom enjoyed by parties to a cross-border legal relationship to agree on the law applicable to it. However, as this study shows, the rule has a major shortcoming because it fails to give due regard to the contractual function of the choice of law agreement. The study examines the existing law on choice of law agreements, by reference to the law of both common and civil law jurisdictions and international instruments. Moreover, it suggests a new coherent approach to party autonomy that integrates both the law of contract and choice of law. This important new study should be read with interest by private international law scholars.
Research Handbook On Eu Private International Law
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Author : Peter Stone
language : en
Publisher: Edward Elgar Publishing
Release Date : 2015-05-29
Research Handbook On Eu Private International Law written by Peter Stone and has been published by Edward Elgar Publishing this book supported file pdf, txt, epub, kindle and other format this book has been release on 2015-05-29 with Law categories.
The harmonisation of private international law in Europe has advanced rapidly since the entry into force of the Treaty of Amsterdam. Most aspects of private international law are now governed or at least affected by EU legislation, and there is a subst
Choice Of Law In International Commercial Contracts
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Author : Oxford Editor
language : en
Publisher:
Release Date : 2021-03
Choice Of Law In International Commercial Contracts written by Oxford Editor and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2021-03 with categories.
This global study provides a definitive reference guide to the key choice of law principles on international contracts, including 60 national and regional reports written by experts from all parts of the world, and a dedicated commentary on the Hague Principles as applied to international commercial arbitration.
The Common Law Jurisprudence Of The Conflict Of Laws
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Author : Sarah McKibbin
language : en
Publisher: Bloomsbury Publishing
Release Date : 2023-05-04
The Common Law Jurisprudence Of The Conflict Of Laws written by Sarah McKibbin and has been published by Bloomsbury Publishing this book supported file pdf, txt, epub, kindle and other format this book has been release on 2023-05-04 with Law categories.
This book presents a collection of leading common law cases in private international law ranging from the 18th to the 21st century. The cases traverse issues of jurisdiction, choice of law and the recognition and enforcement of foreign judgments. Questions of marital validity, domicile, foreign immovable property and choice of law in contract are just some of the topics that this collection examines. The 'unusual factual situations' of some 18th- and 19th-century English cases also reveal compelling human interest stories and political controversies worthy of further exploration. Drawing on a diverse team of contributors, this edited collection showcases the research of eminent conflicts scholars together with emerging scholars from the United Kingdom, Australia, Canada, Ireland and South Africa.