When a contract is breached the law in most jurisdictions provides some version of the aphorism that the non-breaching party should be made whole. Application of the aphorism has proven problematic, particularly for anticipatory repudiations. This paper argues for a general principle that should guide application — the contract is an asset and the problem is one of valuation of the change in value of that asset at the time of the breach. This provides a framework that will help clear up some conceptual problems in damage assessment. The focus is on direct damages, not consequential damages.The paper begins with the simplest case in which the breach occurs at the time of performance. Even in that case there is some controversy as to whether post-breach facts (e.g., changes in market conditions) should be taken into account. In the United States, for instance, some commentators argue that there is a conflict between UCC §2-706 (cover) and 2-708(1) (contract/market differential). The conflict is resolved if, instead of viewing the two as alternatives, we view cover as evidence of the value at the time of the breach.Long-term contracts present two different issues, the breach of a single installment and the anticipatory repudiation of a contract with many years yet to run. The latter problem is exacerbated if the contract includes such complicating factors as take-or-pay clauses, price adjustment mechanisms, and early termination options. The value of the contract at the time of the repudiation would reflect both the expected future stream of income (lost profits) and the efforts of the counterparty to adapt if performance ceased (mitigation). Cases of this sort often arise in international arbitrations. A State might, for example, grant a concession to exploit an oil field and, after the development has been successful, it could try to recapture some, or all, of the value, perhaps by imposing taxes or by an out-and-out expropriation. The basic damage principle — valuation at the time of the repudiation — remains the same.
{"title":"Reckoning Contract Damages: Valuation of the Contract as an Asset","authors":"Victor P. Goldberg","doi":"10.2139/SSRN.2754267","DOIUrl":"https://doi.org/10.2139/SSRN.2754267","url":null,"abstract":"When a contract is breached the law in most jurisdictions provides some version of the aphorism that the non-breaching party should be made whole. Application of the aphorism has proven problematic, particularly for anticipatory repudiations. This paper argues for a general principle that should guide application — the contract is an asset and the problem is one of valuation of the change in value of that asset at the time of the breach. This provides a framework that will help clear up some conceptual problems in damage assessment. The focus is on direct damages, not consequential damages.The paper begins with the simplest case in which the breach occurs at the time of performance. Even in that case there is some controversy as to whether post-breach facts (e.g., changes in market conditions) should be taken into account. In the United States, for instance, some commentators argue that there is a conflict between UCC §2-706 (cover) and 2-708(1) (contract/market differential). The conflict is resolved if, instead of viewing the two as alternatives, we view cover as evidence of the value at the time of the breach.Long-term contracts present two different issues, the breach of a single installment and the anticipatory repudiation of a contract with many years yet to run. The latter problem is exacerbated if the contract includes such complicating factors as take-or-pay clauses, price adjustment mechanisms, and early termination options. The value of the contract at the time of the repudiation would reflect both the expected future stream of income (lost profits) and the efforts of the counterparty to adapt if performance ceased (mitigation). Cases of this sort often arise in international arbitrations. A State might, for example, grant a concession to exploit an oil field and, after the development has been successful, it could try to recapture some, or all, of the value, perhaps by imposing taxes or by an out-and-out expropriation. The basic damage principle — valuation at the time of the repudiation — remains the same.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129691484","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 paper analyses the reform of Polish sales law in 2014, which served the objective of re-implementing the EU Consumer Sales Directive to Polish Law.
本文分析了2014年波兰销售法的改革，该改革旨在将欧盟消费者销售指令重新实施到波兰法律中。
{"title":"The Reform of Polish Sales Law – Re-Implementing the Consumer Sales Directive","authors":"Piotr Tereszkiewicz","doi":"10.2139/SSRN.2854137","DOIUrl":"https://doi.org/10.2139/SSRN.2854137","url":null,"abstract":"The paper analyses the reform of Polish sales law in 2014, which served the objective of re-implementing the EU Consumer Sales Directive to Polish Law.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123895867","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 : 2015-12-14DOI: 10.18601/01234366.n29.06
M. Farina
El autor, luego de esbozar brevemente las distintas problematicas relacionadas con la identificacion del objeto del contrato y su eventual ausencia de completitud, se ocupa de este ultimo problema desde el punto de vista juridico y economico, identificando las interferencias mutuas en el plano operativo. A continuacion, aborda la compleja relacion entre el caracter incompleto y la invalidez del contrato, centrandose en el rol de la integracion ope legis de su contenido. Luego se ocupa de manera especifica de las particulares causas de dichos vacios y su relevancia en el ambito de la eventualidad, para finalmente presentar las posibles soluciones ofrecidas por el ordenamiento italiano, concentrando la atencion en el uso de la clausula general de buena fe.
{"title":"Integración Del Contrato 'Incompleto' En El Ordenamiento Italiano (Completion of 'Incomplete' Contract in Italian Law)","authors":"M. Farina","doi":"10.18601/01234366.n29.06","DOIUrl":"https://doi.org/10.18601/01234366.n29.06","url":null,"abstract":"El autor, luego de esbozar brevemente las distintas problematicas relacionadas con la identificacion del objeto del contrato y su eventual ausencia de completitud, se ocupa de este ultimo problema desde el punto de vista juridico y economico, identificando las interferencias mutuas en el plano operativo. A continuacion, aborda la compleja relacion entre el caracter incompleto y la invalidez del contrato, centrandose en el rol de la integracion ope legis de su contenido. Luego se ocupa de manera especifica de las particulares causas de dichos vacios y su relevancia en el ambito de la eventualidad, para finalmente presentar las posibles soluciones ofrecidas por el ordenamiento italiano, concentrando la atencion en el uso de la clausula general de buena fe.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"713 ","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134063087","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}
Analysis of a decision determining that rescission is an appropriate remedy despite the complications of ending the previous sale of the real property.
一项决定的分析，确定解除是一种适当的补救措施，尽管结束以前的房地产销售的复杂性。
{"title":"Rethinking Rescission","authors":"R. Bernhardt","doi":"10.2139/ssrn.2673218","DOIUrl":"https://doi.org/10.2139/ssrn.2673218","url":null,"abstract":"Analysis of a decision determining that rescission is an appropriate remedy despite the complications of ending the previous sale of the real property.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125264583","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 scope of this article is to analyse whether or not the United Nations Convention on Contracts for the International Sale of Goods (hereinafter, “CISG”) is applicable to Hong Kong-related disputes.So, in this article, the author analyses pros and cons of the different theories and then he tries to reach a conclusion whether or not the CISG is applicable to the contracts between a Hong Kong party and a foreign party and to the contracts between a Hong Kong party and a Mainland China party.
{"title":"Is the CISG Applicable to Hong Kong-Related Disputes?","authors":"B. Cartoni","doi":"10.2139/SSRN.2648323","DOIUrl":"https://doi.org/10.2139/SSRN.2648323","url":null,"abstract":"The scope of this article is to analyse whether or not the United Nations Convention on Contracts for the International Sale of Goods (hereinafter, “CISG”) is applicable to Hong Kong-related disputes.So, in this article, the author analyses pros and cons of the different theories and then he tries to reach a conclusion whether or not the CISG is applicable to the contracts between a Hong Kong party and a foreign party and to the contracts between a Hong Kong party and a Mainland China party.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"426 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126720332","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}
In most Western legal systems, contract law, to some extent, requires parties to act in consideration of the counterparty’s interests. This is originally a Roman law idea. In the Latin European law family we find bonne foi and similar concepts laid down in the civil codes. In German law the codified concept Treu und Glauben is considered to be one of the most important pillars of the private law system, and equivalent codified domestic concepts have impetus throughout the Germanic private law family. The standing of good faith within the common law world, however, differs significantly. In some common law countries good faith is fundamental. This is especially true for the United States, where good faith in performance and enforcement of contracts has grown into almost every aspect of contract law in almost every state. It has a statutory basis as a result of the state by state transpositions of the Uniform Commercial Code, and the authority is strengthened by the Restatements (2d) of Contracts. The United Kingdom is at the opposite end of the scale. Good faith, though existing in some types of contracts, is not recognised as a norm with general applicability, not even in the contractual stage. One will find Nordic law, as so often it is, positioned between civil and common law but clearly leaning towards civil law. This requirement is in Nordic legal terminology phrased the duty of loyalty. It has no statutory basis with general scope. Nonetheless, a requirement to consider the other party’s interests does exist. In support, there are some statutory provisions covering certain professions, a growing number of court cases and consensus in the literature.
{"title":"The Contractual Duty of Loyalty: Good Faith in the Performance and Enforcement of Contracts","authors":"Jori Munukka","doi":"10.2139/ssrn.3076434","DOIUrl":"https://doi.org/10.2139/ssrn.3076434","url":null,"abstract":"In most Western legal systems, contract law, to some extent, requires parties to act in consideration of the counterparty’s interests. This is originally a Roman law idea. In the Latin European law family we find bonne foi and similar concepts laid down in the civil codes. In German law the codified concept Treu und Glauben is considered to be one of the most important pillars of the private law system, and equivalent codified domestic concepts have impetus throughout the Germanic private law family. The standing of good faith within the common law world, however, differs significantly. In some common law countries good faith is fundamental. This is especially true for the United States, where good faith in performance and enforcement of contracts has grown into almost every aspect of contract law in almost every state. It has a statutory basis as a result of the state by state transpositions of the Uniform Commercial Code, and the authority is strengthened by the Restatements (2d) of Contracts. The United Kingdom is at the opposite end of the scale. Good faith, though existing in some types of contracts, is not recognised as a norm with general applicability, not even in the contractual stage. \u0000One will find Nordic law, as so often it is, positioned between civil and common law but clearly leaning towards civil law. This requirement is in Nordic legal terminology phrased the duty of loyalty. It has no statutory basis with general scope. Nonetheless, a requirement to consider the other party’s interests does exist. In support, there are some statutory provisions covering certain professions, a growing number of court cases and consensus in the literature.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-06-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114836235","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}
A digest, summary and commentary upon Australian caselaw developments on the law of Unjust Enrichment and Restitution in the year 2014. Includes analysis of the critical High Court decisions in Australian Financial Services and Leasing Pty v Hills [2014] HCA 14 (recognising for the first time a defence of change of position in Australian law); Stewart v Atco Controls Pty Ltd [2014] HCA 15.(on liquidators' liens) and Lavin v Toppi (on co-surety contribution rights). Also considers Edelman J's influential decision in Lampson v Fortesque Metals Group Ltd (No 3) [2014] WASC 162.
摘要、总结和评论2014年澳大利亚关于不当得利和赔偿法的判例法发展。包括对澳大利亚金融服务和租赁公司诉希尔斯案[2014]HCA 14中的关键高等法院判决的分析(首次承认澳大利亚法律中立场变化的辩护);Stewart诉Atco Controls Pty Ltd [2014] HCA 15。(关于清算人留置权)和Lavin诉Toppi(关于共同担保出资权)。还考虑了Edelman J在Lampson v Fortesque Metals Group Ltd (No . 3) [2014] WASC 162的影响。
{"title":"Unjust Enrichment in Australia 2014","authors":"K. Barker, H. Tait","doi":"10.2139/ssrn.3891934","DOIUrl":"https://doi.org/10.2139/ssrn.3891934","url":null,"abstract":"A digest, summary and commentary upon Australian caselaw developments on the law of Unjust Enrichment and Restitution in the year 2014. Includes analysis of the critical High Court decisions in Australian Financial Services and Leasing Pty v Hills [2014] HCA 14 (recognising for the first time a defence of change of position in Australian law); Stewart v Atco Controls Pty Ltd [2014] HCA 15.(on liquidators' liens) and Lavin v Toppi (on co-surety contribution rights). Also considers Edelman J's influential decision in Lampson v Fortesque Metals Group Ltd (No 3) [2014] WASC 162.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131725174","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}
Some buyers might prefer not to haggle either because they recognize that the seller they face is likely to be a superior bargainer or because it is easier to comparison shop when prices are known and do not require an investment in transaction costs. Sellers, in turn, might appeal to these buyers by promising a no-haggle environment. In some settings, sellers can go further by promising individual buyers that they will not haggle. These buyers might then engage in one round of haggling, stating a price which the seller agrees to accept or reject, with no further possibility of negotiation. Such buyers might be more confident of getting better offers from agreeable sellers. We describe why and when such a process might be attractive, and suggest a legal remedy that makes it possible. This no-haggle process might be attractive to some repeat sellers when dealing with occasional buyers, and might often be attractive to one-time sellers and buyers, as in the case of many real estate negotiations.
{"title":"No-Haggle Agreements","authors":"Saul Levmore, A. Porat","doi":"10.2139/SSRN.2573902","DOIUrl":"https://doi.org/10.2139/SSRN.2573902","url":null,"abstract":"Some buyers might prefer not to haggle either because they recognize that the seller they face is likely to be a superior bargainer or because it is easier to comparison shop when prices are known and do not require an investment in transaction costs. Sellers, in turn, might appeal to these buyers by promising a no-haggle environment. In some settings, sellers can go further by promising individual buyers that they will not haggle. These buyers might then engage in one round of haggling, stating a price which the seller agrees to accept or reject, with no further possibility of negotiation. Such buyers might be more confident of getting better offers from agreeable sellers. We describe why and when such a process might be attractive, and suggest a legal remedy that makes it possible. This no-haggle process might be attractive to some repeat sellers when dealing with occasional buyers, and might often be attractive to one-time sellers and buyers, as in the case of many real estate negotiations.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"73 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126264804","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}
Private contracts for the exchange of goods and services are increasingly made across national borders. Firms continue to look for the best suppliers for their inputs or the best markets for their outputs, and as the costs of transport come down, global market access goes up. Yet the most fundamental tool of international business — the contract — may be much less “global” than the business itself. The understanding that a firm has of how a contract is formed and enforced in their home jurisdiction may conflict with that of their partners or customers in foreign jurisdictions. In this article, I will examine the common law contract requirement of consideration, an element that can make or break a contract. I will compare the requirements for forming a contract in civil and common law jurisdictions and explain how consideration can be overlooked or underemphasized and what effect this has on the enforcement of commercial contracts. Finally, I will offer practical suggestions for the parties to avoid a consideration challenge following execution of their agreement.
{"title":"Cross-Border Commercial Contracts and the Ongoing Need for Consideration","authors":"Kevin J. Fandl","doi":"10.2139/SSRN.2645395","DOIUrl":"https://doi.org/10.2139/SSRN.2645395","url":null,"abstract":"Private contracts for the exchange of goods and services are increasingly made across national borders. Firms continue to look for the best suppliers for their inputs or the best markets for their outputs, and as the costs of transport come down, global market access goes up. Yet the most fundamental tool of international business — the contract — may be much less “global” than the business itself. The understanding that a firm has of how a contract is formed and enforced in their home jurisdiction may conflict with that of their partners or customers in foreign jurisdictions. In this article, I will examine the common law contract requirement of consideration, an element that can make or break a contract. I will compare the requirements for forming a contract in civil and common law jurisdictions and explain how consideration can be overlooked or underemphasized and what effect this has on the enforcement of commercial contracts. Finally, I will offer practical suggestions for the parties to avoid a consideration challenge following execution of their agreement.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"293 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116247984","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 looks at issues arising in relation to multiple claims contingent on tracing and following. Where a person grants a security interest in an asset in favour of a lender and subsequently sells the asset to a third party without the secured creditor’s consent, a question arises whether the secured creditor may be able to claim both the sale proceeds and the original asset. This paper explores how English law deals with this problem. Unlike in a number of jurisdictions which implemented Personal Property Security Acts, no statute in English law provides an answer to this question. In addition, the judicial guidance is sparse. An existing view seems to be that the secured creditor cannot claim both the traceable proceeds and the original asset because the remedies are inconsistent although the basis for this inconsistency has not been explored. This paper fills the gap.
{"title":"An Uneasy Case of Multiple Tracing Claims in English Law","authors":"Magda E Raczynska","doi":"10.2139/ssrn.2608930","DOIUrl":"https://doi.org/10.2139/ssrn.2608930","url":null,"abstract":"This paper looks at issues arising in relation to multiple claims contingent on tracing and following. Where a person grants a security interest in an asset in favour of a lender and subsequently sells the asset to a third party without the secured creditor’s consent, a question arises whether the secured creditor may be able to claim both the sale proceeds and the original asset. This paper explores how English law deals with this problem. Unlike in a number of jurisdictions which implemented Personal Property Security Acts, no statute in English law provides an answer to this question. In addition, the judicial guidance is sparse. An existing view seems to be that the secured creditor cannot claim both the traceable proceeds and the original asset because the remedies are inconsistent although the basis for this inconsistency has not been explored. This paper fills the gap.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"210 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122639095","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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