This paper argues that the EU can be held morally responsible for ensuring justice in the internal market. In particular, the EU must prevent and sanction unjust market conduct by private parties through appropriate private law rules and ensure at least minimal protection of the private rights of internal market agents. The EU’s moral responsibility for maintaining justice in the internal market requires an EU discourse of civil justice going well beyond (and at times against) the European Commission’s slogan of ‘justice for growth’. The article first discusses and rejects three potential challenges to its main claim, all of which are based on different alleged divisions of labour, as a result of which it would seem to follow that European private law has no role to play in assuring distributive and interpersonal justice in the internal market. It then outlines how we might arrive at a conception of unjust conduct in the internal market that is compatible with the value pluralism that characterises Europe today. Finally, it explains why the private law acquis, because of the way it is currently constituted, is unlikely already to be in compliance with such standards of civil justice in the internal market.
{"title":"Unjust Conduct in the Internal Market. On the Role of European Private Law in the Division of Moral Responsibility between the EU, Its Member States and Their Citizens","authors":"M. Hesselink","doi":"10.2139/SSRN.2532375","DOIUrl":"https://doi.org/10.2139/SSRN.2532375","url":null,"abstract":"This paper argues that the EU can be held morally responsible for ensuring justice in the internal market. In particular, the EU must prevent and sanction unjust market conduct by private parties through appropriate private law rules and ensure at least minimal protection of the private rights of internal market agents. The EU’s moral responsibility for maintaining justice in the internal market requires an EU discourse of civil justice going well beyond (and at times against) the European Commission’s slogan of ‘justice for growth’. The article first discusses and rejects three potential challenges to its main claim, all of which are based on different alleged divisions of labour, as a result of which it would seem to follow that European private law has no role to play in assuring distributive and interpersonal justice in the internal market. It then outlines how we might arrive at a conception of unjust conduct in the internal market that is compatible with the value pluralism that characterises Europe today. Finally, it explains why the private law acquis, because of the way it is currently constituted, is unlikely already to be in compliance with such standards of civil justice in the internal market.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122993479","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 aims at demonstrating that excessive protection of incompetent people can produce unintended negative consequences. Both in the Italian system, which is examined here in depth, and in American common law, a contract can be annulled if there is bad faith of behalf of the party who is not incompetent. However, a party in bad faith could offer an incompetent person a contract that does not produce a prejudice and could, in fact, be beneficial for the incompetent party. If the contract can be annulled, and if the prejudice occasionally occurs, the incompetent party can request a contract annulment. Conversely, when the contract produces a benefit, it can be retained by the incompetent party. However, under conditions in which a party in bad faith does not offer the incompetent party a contract, it could bring about a prejudice , and in this way the incompetent party is damaged. Over-protection can produce unintended adverse consequences.
{"title":"Contracts of Individuals Who are Incompetent Without Guardianship and the Interpretation of Article 428 of the Italian Civil Code: Is the Court of Cassation Wrong?","authors":"Enrico Baffi","doi":"10.2139/ssrn.2506178","DOIUrl":"https://doi.org/10.2139/ssrn.2506178","url":null,"abstract":"This paper aims at demonstrating that excessive protection of incompetent people can produce unintended negative consequences. Both in the Italian system, which is examined here in depth, and in American common law, a contract can be annulled if there is bad faith of behalf of the party who is not incompetent. However, a party in bad faith could offer an incompetent person a contract that does not produce a prejudice and could, in fact, be beneficial for the incompetent party. If the contract can be annulled, and if the prejudice occasionally occurs, the incompetent party can request a contract annulment. Conversely, when the contract produces a benefit, it can be retained by the incompetent party. However, under conditions in which a party in bad faith does not offer the incompetent party a contract, it could bring about a prejudice , and in this way the incompetent party is damaged. Over-protection can produce unintended adverse consequences.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129730094","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}
Romanian Abstract: Rezoluțiunea contractelor este o instituție reconfigurată in contextul noului cod civil. Astfel, considerăm util acest studiu menit să analizeze clasificările rezoluțiunii, cu accent asupra rezoluțiunii unilaterale care reprezintă un element de noutate legislativă, dar și asupra relevanței instituției pactelor comisorii, care o dată cu reglementarea rezoluțiunii unilaterale pare a-și pierde din utilitate. In finalul articolului prezentăm situația rezoluțiunii anticipate, care deși nu a fost consacrată expres de legiuitor, poate fi aplicată prin anumite mecanisme dezvoltate pe cale doctrinară și prin intermediul instituției pactelor comisorii exprese.English Abstract: Rescission of contracts is an institution reconfigured under the new Civil Code. We consider useful this study that is aimed to examine the classifications of rescission, focusing on unilateral rescission as a legal element of novelty, and the relevance of commissory pacts institution, that after the regulation of unilateral rescission seems to become useless. At the end of the article we present the situation of anticipated rescission, although not expressly asserted by the legislator, it can be applied through certain mechanisms developed by the doctrine.
{"title":"Felurile Şi Clasificarea Rezoluţiunii (Types and Classification of Rescission)","authors":"Bazil Oglindă","doi":"10.2139/ssrn.2486218","DOIUrl":"https://doi.org/10.2139/ssrn.2486218","url":null,"abstract":"Romanian Abstract: Rezoluțiunea contractelor este o instituție reconfigurată in contextul noului cod civil. Astfel, considerăm util acest studiu menit să analizeze clasificările rezoluțiunii, cu accent asupra rezoluțiunii unilaterale care reprezintă un element de noutate legislativă, dar și asupra relevanței instituției pactelor comisorii, care o dată cu reglementarea rezoluțiunii unilaterale pare a-și pierde din utilitate. In finalul articolului prezentăm situația rezoluțiunii anticipate, care deși nu a fost consacrată expres de legiuitor, poate fi aplicată prin anumite mecanisme dezvoltate pe cale doctrinară și prin intermediul instituției pactelor comisorii exprese.English Abstract: Rescission of contracts is an institution reconfigured under the new Civil Code. We consider useful this study that is aimed to examine the classifications of rescission, focusing on unilateral rescission as a legal element of novelty, and the relevance of commissory pacts institution, that after the regulation of unilateral rescission seems to become useless. At the end of the article we present the situation of anticipated rescission, although not expressly asserted by the legislator, it can be applied through certain mechanisms developed by the doctrine.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130139435","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}
Beginning about ten years ago, several title insurers in the area of real estate financing began issuing UCC insurance that is designed to protect the interest of lenders who take personal property as collateral. UCC insurance provides both defense coverage (malpractice) and payment on a claim for damages under the circumstances when something has gone wrong in the financing transaction — typically a mistaken opinion by legal counsel that leads to the lender’s security interest either being unperfected (and therefore voidable in the debtor’s bankruptcy) or subordinate to the interest of other creditors. Some of the largest land and title insurers now offer UCC insurance, but the terms of the policies vary substantially. This is due in part because the insurers are regulated by each of the state insurance departments in which they do business, but also because the policies are designed for a variety of different forms of secured lending. Without such coverage, lenders would either have to self-insure or have their law firms assume the risks, which can be monumental in large financing transactions. This paper analyzes UCC insurance and discusses its potential benefits and its weaknesses. The paper discusses UCC insurance in the context of mezzanine financing as well as other potential uses for the product. It also includes discussion of potential value of insurance in guarding against risks posed by Articles 8 and 9 of the Uniform Commercial Code.
{"title":"UCC Insurance","authors":"James P. Nehf","doi":"10.2139/ssrn.2479532","DOIUrl":"https://doi.org/10.2139/ssrn.2479532","url":null,"abstract":"Beginning about ten years ago, several title insurers in the area of real estate financing began issuing UCC insurance that is designed to protect the interest of lenders who take personal property as collateral. UCC insurance provides both defense coverage (malpractice) and payment on a claim for damages under the circumstances when something has gone wrong in the financing transaction — typically a mistaken opinion by legal counsel that leads to the lender’s security interest either being unperfected (and therefore voidable in the debtor’s bankruptcy) or subordinate to the interest of other creditors. Some of the largest land and title insurers now offer UCC insurance, but the terms of the policies vary substantially. This is due in part because the insurers are regulated by each of the state insurance departments in which they do business, but also because the policies are designed for a variety of different forms of secured lending. Without such coverage, lenders would either have to self-insure or have their law firms assume the risks, which can be monumental in large financing transactions. This paper analyzes UCC insurance and discusses its potential benefits and its weaknesses. The paper discusses UCC insurance in the context of mezzanine financing as well as other potential uses for the product. It also includes discussion of potential value of insurance in guarding against risks posed by Articles 8 and 9 of the Uniform Commercial Code.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"162 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-08-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132409848","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}
We investigate extension/resource monotonicity and respecting improvements properties of the cumulative offer process (COP). Extension monotonicity says that no doctor is to be better off whenever others start preferring more contracts to being unmatched. Resource monotonicity, on the other hand, requires that no doctor becomes worse off whenever hospitals start hiring more doctors. The COP becomes extension and resource monotonic whenever contracts are unilateral substitutes (US) satisfying an irrelevance of rejected contracts condition (IRC). This result implies that the COP is population monotonic under US and the IRC. We then turn to the respecting improvements property, which states that no doctor should be harmed if some of his contracts become more popular. With an additional law of aggregate demand condition, we show that the COP respects improvements.
{"title":"Some Further Properties of the Cumulative Offer Process","authors":"Mustafa Oǧuz Afacan","doi":"10.2139/ssrn.2478418","DOIUrl":"https://doi.org/10.2139/ssrn.2478418","url":null,"abstract":"We investigate extension/resource monotonicity and respecting improvements properties of the cumulative offer process (COP). Extension monotonicity says that no doctor is to be better off whenever others start preferring more contracts to being unmatched. Resource monotonicity, on the other hand, requires that no doctor becomes worse off whenever hospitals start hiring more doctors. The COP becomes extension and resource monotonic whenever contracts are unilateral substitutes (US) satisfying an irrelevance of rejected contracts condition (IRC). This result implies that the COP is population monotonic under US and the IRC. We then turn to the respecting improvements property, which states that no doctor should be harmed if some of his contracts become more popular. With an additional law of aggregate demand condition, we show that the COP respects improvements.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"89 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126991693","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}
As a matter of introduction, the topic for discussion is seen to entail specific discussion in the form of an introduction to Article 2 of the Uniform Commercial Code (hereinafter referred to as U.C.C.) and subsequently followed with a comparison of the stated Article 2 of U.C.C. with the Articles under the United Nations Convention on Contracts for the International Sale of Goods (hereinafter referred to as CISG). In view of the same, the following discussion shall proceed on this basis in a systematic and orderly method so as to identify and discuss all relevant and pertinent issues. As a necessary introduction to the creation of the U.C.C., it would seem that some discussion of the history of the Code would be in order.
{"title":"The Uniform Commercial Code, Article 2: Introduction and Comparison with the CISG","authors":"S. Woodhull","doi":"10.2139/SSRN.2465362","DOIUrl":"https://doi.org/10.2139/SSRN.2465362","url":null,"abstract":"As a matter of introduction, the topic for discussion is seen to entail specific discussion in the form of an introduction to Article 2 of the Uniform Commercial Code (hereinafter referred to as U.C.C.) and subsequently followed with a comparison of the stated Article 2 of U.C.C. with the Articles under the United Nations Convention on Contracts for the International Sale of Goods (hereinafter referred to as CISG). In view of the same, the following discussion shall proceed on this basis in a systematic and orderly method so as to identify and discuss all relevant and pertinent issues. As a necessary introduction to the creation of the U.C.C., it would seem that some discussion of the history of the Code would be in order.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125245319","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 provides common law trained lawyers working on Latin American deals some insights on the hardship clause and how this theory might be conceived by a Latin American practitioner, in the hope that a greater understanding of this issue will help promote amicable solutions to potential conflicts, if not avoid them altogether.
{"title":"Understanding 'Hardship' and Other Particularities of Project Finance Deals in Latin America","authors":"Marcos Pueyrredon","doi":"10.2139/ssrn.2510561","DOIUrl":"https://doi.org/10.2139/ssrn.2510561","url":null,"abstract":"This paper provides common law trained lawyers working on Latin American deals some insights on the hardship clause and how this theory might be conceived by a Latin American practitioner, in the hope that a greater understanding of this issue will help promote amicable solutions to potential conflicts, if not avoid them altogether.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116256130","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 addresses the legal regime governing contracts concluded by States or state entities with private partners. This is an old question, which has attracted a lot of attention starting in the 1970's. The paper attempts to take stock of the evolution since the first wave of (massive) scholarship on this issue. To that end, the paper first focuses on the determination of the law applicable to such contracts (section 1). Thereafter the focus is on the various stabilization mechanisms used in practice (section 2). This includes both direct stabilization mechanisms and dispute resolution provisions, as these two elements are central to the legal regime of public international contracts. An attempt is made to present both the general principles and the current practice of States – even though it is difficult to draw general lessons as contracts concluded by states, which come in various formats and shapes, are not easily accessible.
{"title":"International Public Contracts: Applicable Law and Dispute Resolution","authors":"P. Wautelet","doi":"10.2139/SSRN.2687627","DOIUrl":"https://doi.org/10.2139/SSRN.2687627","url":null,"abstract":"This paper addresses the legal regime governing contracts concluded by States or state entities with private partners. This is an old question, which has attracted a lot of attention starting in the 1970's. The paper attempts to take stock of the evolution since the first wave of (massive) scholarship on this issue. To that end, the paper first focuses on the determination of the law applicable to such contracts (section 1). Thereafter the focus is on the various stabilization mechanisms used in practice (section 2). This includes both direct stabilization mechanisms and dispute resolution provisions, as these two elements are central to the legal regime of public international contracts. An attempt is made to present both the general principles and the current practice of States – even though it is difficult to draw general lessons as contracts concluded by states, which come in various formats and shapes, are not easily accessible.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"72 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130870811","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}
With the rising commercial activities in Nigeria, engaging in contracts with foreign and local companies has become inevitable. Yet so many contracts have been denied upon its breach and many of such contracts remain inadmissible and/or unenforceable as a result of technical deficiencies. There is, therefore, a need to understand in extensio, the valid forms of a company’s contract especially in Nigeria where the Companies & Allied Matters Act of 1990 (CAMA) has heavily regulated on it. This study is a critical appraisal of the valid forms of contract as contained in the Act and as interpreted by case law. A critical analysis of the same is attempted.
{"title":"Forms and Validity of a Company’s Contract In Nigeria: A Critical Re-Evaluation","authors":"Ifeanyichukwu E. R. Okonkwo","doi":"10.2139/ssrn.3483610","DOIUrl":"https://doi.org/10.2139/ssrn.3483610","url":null,"abstract":"With the rising commercial activities in Nigeria, engaging in contracts with foreign and local companies has become inevitable. Yet so many contracts have been denied upon its breach and many of such contracts remain inadmissible and/or unenforceable as a result of technical deficiencies. There is, therefore, a need to understand in extensio, the valid forms of a company’s contract especially in Nigeria where the Companies & Allied Matters Act of 1990 (CAMA) has heavily regulated on it. This study is a critical appraisal of the valid forms of contract as contained in the Act and as interpreted by case law. A critical analysis of the same is attempted.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126910531","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}
We present a Theory of Contracts under costly enforcement in the context of a dynamic relationship between an uninformed buyer and a seller who is privately informed on his persistent cost at the outset. Public enforcement relies on remedies for breach. Private enforcement comes from severing relationships. We first characterize aggregate enforcement constraints ensuring that trading partners do not breach contracts unduly. Whether a long-term contract is enforceable does not depend on the distribution of penalties for breach between the buyer and the seller. While under complete information, the optimal contract would remain stationary, non-stationarity might arise under asymmetric information. Enforcement constraints are time-dependent and easier to satisfy as time passes. Indeed, a high-cost seller may be tempted to trade high volumes at high prices at the beginning of the relationship before breaching the contract later on. Yet, such take-the-money-and-run strategy becomes less attractive as time passes and can be prevented with back loaded payments. The optimal contract thus goes through two different phases. First, quantities and prices increase at the inception of the relationship. Later on, the contract looks more stationary. Long-run screening distortions encapsulate the quality of enforcement, offering de facto a link between the quality of the legal system and contractual performances.
{"title":"A Theory of Contracts with Limited Enforcement","authors":"D. Martimort, A. Semenov, Lars Stole","doi":"10.2139/ssrn.2396047","DOIUrl":"https://doi.org/10.2139/ssrn.2396047","url":null,"abstract":"We present a Theory of Contracts under costly enforcement in the context of a dynamic relationship between an uninformed buyer and a seller who is privately informed on his persistent cost at the outset. Public enforcement relies on remedies for breach. Private enforcement comes from severing relationships. We first characterize aggregate enforcement constraints ensuring that trading partners do not breach contracts unduly. Whether a long-term contract is enforceable does not depend on the distribution of penalties for breach between the buyer and the seller. While under complete information, the optimal contract would remain stationary, non-stationarity might arise under asymmetric information. Enforcement constraints are time-dependent and easier to satisfy as time passes. Indeed, a high-cost seller may be tempted to trade high volumes at high prices at the beginning of the relationship before breaching the contract later on. Yet, such take-the-money-and-run strategy becomes less attractive as time passes and can be prevented with back loaded payments. The optimal contract thus goes through two different phases. First, quantities and prices increase at the inception of the relationship. Later on, the contract looks more stationary. Long-run screening distortions encapsulate the quality of enforcement, offering de facto a link between the quality of the legal system and contractual performances.","PeriodicalId":129207,"journal":{"name":"Law & Society: Private Law - Contracts eJournal","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126161814","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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