Pub Date : 2021-06-02DOI: 10.18601/01234366.N41.05
Gabriel Alfonso García Brunal
En la actualidad los compradores de vivienda se encuentran desprotegidos frente a ciertos vicios que emergen de forma imperceptible en sus inmuebles pero con el tiempo avanzan progresivamente hasta generar fallas estructurales que terminan deteriorando o desplomando las edificaciones. Estos vicios no se encuentran comprendidos dentro de los mecanismos civiles de protección como la acción redhibitoria y la garantía decenal. El presente artículo explora la posibilidad de acudir a la garantía inmobiliaria que establece el Estatuto del Consumidor como vía para que las personas puedan obtener la protección de sus derechos y responsabilizar a los vendedores por esos vicios.
{"title":"La garantía legal del Estatuto del Consumidor como mecanismo para proteger al comprador frente a vicios inmobiliarios progresivos (The Legal Guarantee of the Consumers Statute as a Mechanism to Protect Buyer Front of Progressive Real Estate Vices)","authors":"Gabriel Alfonso García Brunal","doi":"10.18601/01234366.N41.05","DOIUrl":"https://doi.org/10.18601/01234366.N41.05","url":null,"abstract":"En la actualidad los compradores de vivienda se encuentran desprotegidos frente a ciertos vicios que emergen de forma imperceptible en sus inmuebles pero con el tiempo avanzan progresivamente hasta generar fallas estructurales que terminan deteriorando o desplomando las edificaciones. Estos vicios no se encuentran comprendidos dentro de los mecanismos civiles de protección como la acción redhibitoria y la garantía decenal. El presente artículo explora la posibilidad de acudir a la garantía inmobiliaria que establece el Estatuto del Consumidor como vía para que las personas puedan obtener la protección de sus derechos y responsabilizar a los vendedores por esos vicios.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116149396","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-02DOI: 10.18601/01234366.n41.03
Thea Christine Bauer, María Bernal
Los efectos de la pandemia han evidenciado la insuficiencia de herramientas jurídicas como la fuerza mayor o la imprevisión para hacer frente a las diversas dificultades que enfrentan los contratantes por circunstancias extraordinarias posteriores a la celebración de los acuerdos, más allá de la imposibilidad de cumplimiento o la excesiva onerosidad prestacional. Este artículo pretende analizar aproximaciones diferentes que puedan dar luces para encontrar una salida que tenga como norte una mayor justicia contractual, tales como la doctrina del solidarismo contractual y la teoría de los contratos relacionales.
{"title":"Solidarismo y contratos relacionales: alternativas frente a la pandemia de covid-19 (Contractual Solidarism and Relational Contract Theory: Alternative Approaches to Contract Law in Light of the COVID-19 Pandemic)","authors":"Thea Christine Bauer, María Bernal","doi":"10.18601/01234366.n41.03","DOIUrl":"https://doi.org/10.18601/01234366.n41.03","url":null,"abstract":"Los efectos de la pandemia han evidenciado la insuficiencia de herramientas jurídicas como la fuerza mayor o la imprevisión para hacer frente a las diversas dificultades que enfrentan los contratantes por circunstancias extraordinarias posteriores a la celebración de los acuerdos, más allá de la imposibilidad de cumplimiento o la excesiva onerosidad prestacional. Este artículo pretende analizar aproximaciones diferentes que puedan dar luces para encontrar una salida que tenga como norte una mayor justicia contractual, tales como la doctrina del solidarismo contractual y la teoría de los contratos relacionales.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124031237","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article explores the implications of transactional script smart contracts used in situations where there is less than total trust between the parties. In particular, this Article asks the question of how parties to these next generation transactional scripts can seek redress and remedies in the event that the transactional script does not perform according to the parties’ intent. Until parties feel safe that any errors can be corrected, large-scale implementation of transactional scripts will be hobbled. Part II of this Article articulates why the term “transactional scripts” is preferable to “smart contracts” and describes the utility and potential of transactional scripts. Part III identifies several factors that hinder greater expansion of the use of transactional scripts. It goes on to identify uncertainty of enforcement as the most important barrier to transactional script innovation, finding that parties will be reluctant to entrust bigger and more complex transactions to transactional scripts until the parties are comfortable that an external mechanism is capable of correcting errors in the execution of the transaction. This lack of reliable enforcement mechanisms is a problem exacerbated by the characteristic of distributed ledger technology, which is to move only forward, preventing revisions or reversals of preexisting entries. Part IV explores and critiques possible mechanisms that may be able to provide error correction, including statutory law, private law, online dispute resolution, public/private regulatory partnership, and common law. Part V concludes the Article, noting that the expansion of transactional scripts’ utility will be tethered to the security provided by available error-correction mechanisms. Only as contracting parties become assured that the integrity of their transactional intent will be effectuated will transactional scripts be adopted for use.
{"title":"Error Correction Mechanisms for Transactional Script Smart Contracts","authors":"C. Christopher","doi":"10.17161/1808.31577","DOIUrl":"https://doi.org/10.17161/1808.31577","url":null,"abstract":"This Article explores the implications of transactional script smart contracts used in situations where there is less than total trust between the parties. In particular, this Article asks the question of how parties to these next generation transactional scripts can seek redress and remedies in the event that the transactional script does not perform according to the parties’ intent. Until parties feel safe that any errors can be corrected, large-scale implementation of transactional scripts will be hobbled. Part II of this Article articulates why the term “transactional scripts” is preferable to “smart contracts” and describes the utility and potential of transactional scripts. Part III identifies several factors that hinder greater expansion of the use of transactional scripts. It goes on to identify uncertainty of enforcement as the most important barrier to transactional script innovation, finding that parties will be reluctant to entrust bigger and more complex transactions to transactional scripts until the parties are comfortable that an external mechanism is capable of correcting errors in the execution of the transaction. This lack of reliable enforcement mechanisms is a problem exacerbated by the characteristic of distributed ledger technology, which is to move only forward, preventing revisions or reversals of preexisting entries. Part IV explores and critiques possible mechanisms that may be able to provide error correction, including statutory law, private law, online dispute resolution, public/private regulatory partnership, and common law. Part V concludes the Article, noting that the expansion of transactional scripts’ utility will be tethered to the security provided by available error-correction mechanisms. Only as contracting parties become assured that the integrity of their transactional intent will be effectuated will transactional scripts be adopted for use.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117314718","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Litigation finance is quickly becoming a centerpiece of our legal system. Once a dispute arises, litigants may seek money from third-party financiers to pay their legal bills or monetize their claims, and in turn those financiers receive a portion of any case proceeds. Yet policymakers are struggling with how to best evaluate and regulate litigation finance. There are two problems. The first is an awareness problem. Some commentators consider litigation finance “likely the most important development in civil justice of our time,” but others have hardly heard of it. As a result, policymakers don’t quite understand what litigation finance is, how it works, and what’s actually new about it. The second problem is analytical. There is no scholarly framework policymakers can rely upon to evaluate whether litigation finance is actually good for the legal system and society. Moreover, the existing scholarship has overlooked important welfare effects, risking inefficient and sub-optimal regulatory decision-making. This Article addresses both problems. First, it articulates what exactly litigation finance is, who uses it, why they use it and — most importantly — details what is (and isn’t) new about this form of financing. Second, it provides a novel framework for analyzing the welfare implications of litigation finance. The existing scholarship has thus far focused narrowly on the effects of litigation finance on behavior after a claim accrues and a litigant seeks funding. This Article’s framework provides new insights by explaining how litigation finance also significantly affects parties’ behavior before a legal dispute ever arises. Once these “pre-claim” effects of litigation finance are understood alongside the “post-claim” effects that scholars have previously identified, it becomes clear that policymakers should encourage rather than obstruct litigation finance.
{"title":"The Shadows of Litigation Finance","authors":"Suneal Bedi, William Marra","doi":"10.2139/ssrn.3666498","DOIUrl":"https://doi.org/10.2139/ssrn.3666498","url":null,"abstract":"Litigation finance is quickly becoming a centerpiece of our legal system. Once a dispute arises, litigants may seek money from third-party financiers to pay their legal bills or monetize their claims, and in turn those financiers receive a portion of any case proceeds. Yet policymakers are struggling with how to best evaluate and regulate litigation finance. There are two problems. The first is an awareness problem. Some commentators consider litigation finance “likely the most important development in civil justice of our time,” but others have hardly heard of it. As a result, policymakers don’t quite understand what litigation finance is, how it works, and what’s actually new about it. The second problem is analytical. There is no scholarly framework policymakers can rely upon to evaluate whether litigation finance is actually good for the legal system and society. Moreover, the existing scholarship has overlooked important welfare effects, risking inefficient and sub-optimal regulatory decision-making. \u0000 \u0000This Article addresses both problems. First, it articulates what exactly litigation finance is, who uses it, why they use it and — most importantly — details what is (and isn’t) new about this form of financing. Second, it provides a novel framework for analyzing the welfare implications of litigation finance. The existing scholarship has thus far focused narrowly on the effects of litigation finance on behavior after a claim accrues and a litigant seeks funding. This Article’s framework provides new insights by explaining how litigation finance also significantly affects parties’ behavior before a legal dispute ever arises. Once these “pre-claim” effects of litigation finance are understood alongside the “post-claim” effects that scholars have previously identified, it becomes clear that policymakers should encourage rather than obstruct litigation finance.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-08-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115525740","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Spanish Abstract: Este articulo explora la correspondencia entre las preferencias dominantes en la ciudadania y varios atributos caracteristicos del Derecho espanol. En relacion con paises europeos de similar tamano, los espanoles mostramos en promedio unas marcadas preferencias estatistas y contrarias a la competencia, las cuales favorecerian una concepcion finalista de las leyes; asi como una tendencia a imponer excesivas reglas imperativas sobre la libertad contractual. En la medida en que las disfunciones estructurales de nuestro marco normativo corresponden a las preferencias ciudadanas, estas podrian explicar la proliferacion de las reformas y su reiterado fracaso. English Abstract: This paper explores the correspondence between dominant citizens’ values, as observed in two main sets of international opinion surveys, and several key features of Spanish law. Relative to comparable European countries, Spaniards show on average marked statist and anticompetitive preferences, which arguably favor an idealist conception of legislation as well as a tendency to impose mandatory rules on contractual freedom. To the extent that dysfunctions observed in Spain’s legal framework correspond to such values, these could help to explain the proliferation and recurrent failure of reform efforts.
摘要:本文探讨了公民身份的主导偏好与西班牙法律的几个特征属性之间的对应关系。在与类似规模的欧洲国家的关系中，西班牙人平均表现出强烈的中央集权和反竞争的偏好，这有利于法律的最终概念;此外，还有一种倾向，即对合同自由施加过多的强制性规则。在某种程度上，我们的监管框架的结构性功能失调符合公民的偏好，这可以解释改革的扩散和改革的反复失败。English Abstract: This paper explores the correspondence between伍德罗公民价值观,main observed in two sets of international舆论调查,《…and若干key的法律。相对于可比的欧洲国家，西班牙表现出平均标记的统计和反竞争偏好，这可能倾向于一种理想主义的立法概念，并倾向于对合同自由施加强制性规则。就西班牙法律框架所观察到的功能失调程度而言，这有助于解释扩散和改革努力一再失败的原因。
{"title":"Malas leyes (Bad Law)","authors":"Benito Arruñada","doi":"10.2139/ssrn.3657441","DOIUrl":"https://doi.org/10.2139/ssrn.3657441","url":null,"abstract":"Spanish Abstract: Este articulo explora la correspondencia entre las preferencias dominantes en la ciudadania y varios atributos caracteristicos del Derecho espanol. En relacion con paises europeos de similar tamano, los espanoles mostramos en promedio unas marcadas preferencias estatistas y contrarias a la competencia, las cuales favorecerian una concepcion finalista de las leyes; asi como una tendencia a imponer excesivas reglas imperativas sobre la libertad contractual. En la medida en que las disfunciones estructurales de nuestro marco normativo corresponden a las preferencias ciudadanas, estas podrian explicar la proliferacion de las reformas y su reiterado fracaso. English Abstract: This paper explores the correspondence between dominant citizens’ values, as observed in two main sets of international opinion surveys, and several key features of Spanish law. Relative to comparable European countries, Spaniards show on average marked statist and anticompetitive preferences, which arguably favor an idealist conception of legislation as well as a tendency to impose mandatory rules on contractual freedom. To the extent that dysfunctions observed in Spain’s legal framework correspond to such values, these could help to explain the proliferation and recurrent failure of reform efforts.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129740373","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Arizona’s position as a leader in economic freedom has made it one of the United States’ most business-friendly states, resulting in a relatively sustained economic boom over the last 30 years. Post-recession success is at least partially due to the state’s deregulation and pro-technology development policies. Unfortunately, technology development in Arizona and across the country is often still stunted by a complicated, laborious web of federal regulations. Federal and state leaders can work cooperatively to lower regulatory barriers to innovation and supercharge the economy. Current Arizona Governor Doug Ducey’s administration has done an admirable job of encouraging legislation that addresses both these needs. One notable example is the Regulatory Sandbox—a pro-growth, pro-technology, and pro-competition program aimed at attracting increased out-of-state investment and high-paying technology jobs. The Sandbox enables an approved business limited access to the Arizona consumer market to test innovative FinTech and RegTech products and services without first having to obtain otherwise applicable authorizations to operate, such as a business license. This program promises to be an unparalleled opportunity for Arizona to help secure the state’s technological and financial future, while strengthening consumer safeguards and economic liberty. However, for the benefits of sandbox-like programs to be fully realized, federal agencies will need to participate in regulatory coordination with state agencies. This will require federal agencies to exercise their exemptive authority, to ensure Sandbox participants are not burdened by federal regulations that are redundant of exempted state regulations. If such coordination is achieved, innovation should truly flourish. This article describes how the Sandbox works, the reasons for its creation, why regulatory coordination is imperative to unlocking the Sandbox’s full innovation-generating potential, and the ways in which federal agencies can exercise their exemptive authority to facilitate this increased innovation and economic growth.
{"title":"Regulatory Sandboxes: How Federal Agencies Can Take Part in Cooperative Federalism and Catalyze Innovation and Economic Growth through Exercise of Their Exemptive Authority","authors":"Grant Frazier, N. Walter","doi":"10.2139/ssrn.3561263","DOIUrl":"https://doi.org/10.2139/ssrn.3561263","url":null,"abstract":"Arizona’s position as a leader in economic freedom has made it one of the United States’ most business-friendly states, resulting in a relatively sustained economic boom over the last 30 years. Post-recession success is at least partially due to the state’s deregulation and pro-technology development policies. Unfortunately, technology development in Arizona and across the country is often still stunted by a complicated, laborious web of federal regulations. Federal and state leaders can work cooperatively to lower regulatory barriers to innovation and supercharge the economy. Current Arizona Governor Doug Ducey’s administration has done an admirable job of encouraging legislation that addresses both these needs. \u0000 \u0000One notable example is the Regulatory Sandbox—a pro-growth, pro-technology, and pro-competition program aimed at attracting increased out-of-state investment and high-paying technology jobs. The Sandbox enables an approved business limited access to the Arizona consumer market to test innovative FinTech and RegTech products and services without first having to obtain otherwise applicable authorizations to operate, such as a business license. This program promises to be an unparalleled opportunity for Arizona to help secure the state’s technological and financial future, while strengthening consumer safeguards and economic liberty. However, for the benefits of sandbox-like programs to be fully realized, federal agencies will need to participate in regulatory coordination with state agencies. This will require federal agencies to exercise their exemptive authority, to ensure Sandbox participants are not burdened by federal regulations that are redundant of exempted state regulations. If such coordination is achieved, innovation should truly flourish. \u0000 \u0000This article describes how the Sandbox works, the reasons for its creation, why regulatory coordination is imperative to unlocking the Sandbox’s full innovation-generating potential, and the ways in which federal agencies can exercise their exemptive authority to facilitate this increased innovation and economic growth.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130828773","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper explores the doctrines of duress and undue influence in contract law. It traces the origins of the two doctrines, in an attempt to decipher their inner morality. Majority of the foundational contract law doctrines and principles rooted in the common law are now tempered with an assortment of equitable concerns and the law on undue influence is a perfect example, allowing courts to set aside putatively valid contracts if a sufficient level of unfairness is discovered to have characterised the pre-contractual negotiations. Over all, it is hoped that this paper shall shall be a valuable addition to the legal literature explicating the freedom of contract and the need for ethics in pre-contractual negotiations.
{"title":"Duress, Undue Influence and the Ethics of Pre-contractual Negotiation","authors":"Paul James Kalondo","doi":"10.2139/ssrn.3533966","DOIUrl":"https://doi.org/10.2139/ssrn.3533966","url":null,"abstract":"This paper explores the doctrines of duress and undue influence in contract law. It traces the origins of the two doctrines, in an attempt to decipher their inner morality. Majority of the foundational contract law doctrines and principles rooted in the common law are now tempered with an assortment of equitable concerns and the law on undue influence is a perfect example, allowing courts to set aside putatively valid contracts if a sufficient level of unfairness is discovered to have characterised the pre-contractual negotiations. \u0000 \u0000Over all, it is hoped that this paper shall shall be a valuable addition to the legal literature explicating the freedom of contract and the need for ethics in pre-contractual negotiations.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114782350","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The statute of frauds requires certain categories of contracts to be evidenced by a signed writing. The original purpose of the statute of frauds, indeed its titular purpose, is the prevention of the fraudulent assertion of a non-existent oral contract. Although a signed writing is the formal way in which to satisfy the statute of frauds, courts have long recognized various exceptions to the writing requirement which will be held to satisfy the statute absent a writing. The effect of such exceptions is that they constitute an alternative form of evidence for the presence of a contract. One such exception is the judicial admission of a contract – where the defendant admits in his pleadings, testimony, or otherwise in court under oath that a contract (and its terms) exists. Such judicial admission of the existence of a contract seemingly completely vindicates the primary and original purpose of the statute of frauds. A defendant that judicially admits that he or she entered into a contract, has no concern that such contract is fraudulently being asserted against him. It is, therefore, “astonishing” (to use Professor Robert Stevens’ phrase) that the judicial admissions exception completely fell out of favor in England, and then the United States in the 18th and 19th centuries, and instead the dominant majority rule became the elimination of the exception. For the stated purposes of removing the defendant’s incentive to commit perjury and falsely deny the contract in order to avoid liability, the now longstanding majority rule became that a defendant could admit the contract and yet still assert the statute of frauds defense. Such rule is of dubious justification, which is why Article 2 of the Uniform Commercial Code reinstated the judicial admissions exception in the case of contracts for the sale of goods. The rule remained virtually absent in non-goods cases, however. Thankfully, and as reported by Professor Shedd in published articles in 1984 and 1991, an embryonic judicial admissions rule began to reemerge in the early 20th century, but he observed that it remained a very small minority rule. This article updates the research to the present and observes that the rule appears to still be a minority rule although the number of adoptions has increased. Nevertheless, the rule represents sound statute of frauds policy, and should be fully implemented by case decision or statute.
{"title":"The Judicial Admissions Exception to the Statute of Frauds: A Curiously Gradual Adoption","authors":"Wayne R. Barnes","doi":"10.2139/ssrn.3521985","DOIUrl":"https://doi.org/10.2139/ssrn.3521985","url":null,"abstract":"The statute of frauds requires certain categories of contracts to be evidenced by a signed writing. The original purpose of the statute of frauds, indeed its titular purpose, is the prevention of the fraudulent assertion of a non-existent oral contract. Although a signed writing is the formal way in which to satisfy the statute of frauds, courts have long recognized various exceptions to the writing requirement which will be held to satisfy the statute absent a writing. The effect of such exceptions is that they constitute an alternative form of evidence for the presence of a contract. One such exception is the judicial admission of a contract – where the defendant admits in his pleadings, testimony, or otherwise in court under oath that a contract (and its terms) exists. Such judicial admission of the existence of a contract seemingly completely vindicates the primary and original purpose of the statute of frauds. A defendant that judicially admits that he or she entered into a contract, has no concern that such contract is fraudulently being asserted against him. It is, therefore, “astonishing” (to use Professor Robert Stevens’ phrase) that the judicial admissions exception completely fell out of favor in England, and then the United States in the 18th and 19th centuries, and instead the dominant majority rule became the elimination of the exception. For the stated purposes of removing the defendant’s incentive to commit perjury and falsely deny the contract in order to avoid liability, the now longstanding majority rule became that a defendant could admit the contract and yet still assert the statute of frauds defense. Such rule is of dubious justification, which is why Article 2 of the Uniform Commercial Code reinstated the judicial admissions exception in the case of contracts for the sale of goods. The rule remained virtually absent in non-goods cases, however. Thankfully, and as reported by Professor Shedd in published articles in 1984 and 1991, an embryonic judicial admissions rule began to reemerge in the early 20th century, but he observed that it remained a very small minority rule. This article updates the research to the present and observes that the rule appears to still be a minority rule although the number of adoptions has increased. Nevertheless, the rule represents sound statute of frauds policy, and should be fully implemented by case decision or statute.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"327 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133499538","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-01-10DOI: 10.34218/ijciet.11.1.2020.006
A. Dix
Unfair contracting practices are a major contributor to the high cost, failed schedules, bankrupted Contractors and other abominations afflicting major subsurface projects in many countries. The new Emerald Book is an ITA/FIDIC joint initiative to create a fairer contractual framework for the construction of underground works and heralds an international recognition of the benefits of carefully apportioning ground conditions risk Inappropriate risk allocation contributes to the cost, schedule uncertainty, business risk and complexity of underground infrastructure delivery. In recent decades ill-informed allied professionals have wrongly guided Employers to specify irresponsible contractual terms that entirely place ground condition risk (sovereign risk) with the Contractors and then invite the market to enter a fierce commercial battle in which the lowest bidding Contractor assumes the sovereign‟s ground risk. Financiers are advantaged by such risk apportionment but rarely is this motivation for such practices acknowledged or discussed. Under the new Emerald Book, FIDIC arrangements commercial tension is directed to the price for construction and associated works for the execution of the excavation and lining works including design and construction methods and the reaction of the ground to such methods. The Geotechnical Baseline Report sets out the allocation of the risk between the parties for such subsurface physical conditions. Under the new FIDIC/ITA Emerald Book arrangements the Contractor is expected to perform in accordance with its bid and is only compensated for the conditions encountered. For the Employer this means that they can rely upon the Contractor to perform as warranted under the Contract – demanding the competence, skill and expertise required to undertake the anticipated task. For the Contractor it means that where the encountered conditions and reaction of the ground is not as warranted by the Employer, there is a mechanism to adjust the terms of the Contract to compensate for the consequences of unanticipated conditions. The attraction of this new FIDIC/ITA Emerald Book Contract framework is that for the most part it draws upon the well-known normal FIDIC forms of contracting providing reassurance to Employers, Contractors and Banks that the allocation of risks, mechanisms for dispute and conduct of Contract management are sound, reliable and internationally understood. Innovative features of the new Emerald Book include a contractual mechanism to extend or shorten the time for completion, adjustments to remuneration and a focus on the expertise of the Contractor. Importantly these innovations are linked to Geotechnical Baseline Reports and therefore the rock. In this way rock beats paper because remuneration is based upon fact and not maneuvering for commercial variations and other elaborate desperate mechanisms.
{"title":"The Renaissance of Fairness in Ground Risk Allocation – The New ITA/FIDIC Emerald Book","authors":"A. Dix","doi":"10.34218/ijciet.11.1.2020.006","DOIUrl":"https://doi.org/10.34218/ijciet.11.1.2020.006","url":null,"abstract":"Unfair contracting practices are a major contributor to the high cost, failed schedules, bankrupted Contractors and other abominations afflicting major subsurface projects in many countries. The new Emerald Book is an ITA/FIDIC joint initiative to create a fairer contractual framework for the construction of underground works and heralds an international recognition of the benefits of carefully apportioning ground conditions risk Inappropriate risk allocation contributes to the cost, schedule uncertainty, business risk and complexity of underground infrastructure delivery. In recent decades ill-informed allied professionals have wrongly guided Employers to specify irresponsible contractual terms that entirely place ground condition risk (sovereign risk) with the Contractors and then invite the market to enter a fierce commercial battle in which the lowest bidding Contractor assumes the sovereign‟s ground risk. Financiers are advantaged by such risk apportionment but rarely is this motivation for such practices acknowledged or discussed. Under the new Emerald Book, FIDIC arrangements commercial tension is directed to the price for construction and associated works for the execution of the excavation and lining works including design and construction methods and the reaction of the ground to such methods. The Geotechnical Baseline Report sets out the allocation of the risk between the parties for such subsurface physical conditions. Under the new FIDIC/ITA Emerald Book arrangements the Contractor is expected to perform in accordance with its bid and is only compensated for the conditions encountered. For the Employer this means that they can rely upon the Contractor to perform as warranted under the Contract – demanding the competence, skill and expertise required to undertake the anticipated task. For the Contractor it means that where the encountered conditions and reaction of the ground is not as warranted by the Employer, there is a mechanism to adjust the terms of the Contract to compensate for the consequences of unanticipated conditions. The attraction of this new FIDIC/ITA Emerald Book Contract framework is that for the most part it draws upon the well-known normal FIDIC forms of contracting providing reassurance to Employers, Contractors and Banks that the allocation of risks, mechanisms for dispute and conduct of Contract management are sound, reliable and internationally understood. Innovative features of the new Emerald Book include a contractual mechanism to extend or shorten the time for completion, adjustments to remuneration and a focus on the expertise of the Contractor. Importantly these innovations are linked to Geotechnical Baseline Reports and therefore the rock. In this way rock beats paper because remuneration is based upon fact and not maneuvering for commercial variations and other elaborate desperate mechanisms.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133481619","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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