When should specific performance be available for breach of contract? This question has engaged generations of legal economists and philosophers, historians and comparativists. Yet none of these disciplines have provided a persuasive answer. This Article provides a normatively-attractive and conceptually-coherent account. Respect for the autonomy of the promisor’s future self explains why expectation damages are, and should be, the ordinary remedy for contract breach. Also, this same normative commitment to the contracting parties’ autonomy best justifies the “uniqueness exception,” where specific performance is typically awarded, and the personal services exclusion, where it is not. For the most part, the boundaries of specific performance track the common law’s underlying commitment to autonomy. But not entirely. There’s still work to be done, and this Article points the way with concrete doctrinal reforms that can better align specific performance with its animating principles.
{"title":"Specific Performance","authors":"Hanoch Dagan, M. Heller","doi":"10.2139/ssrn.3647336","DOIUrl":"https://doi.org/10.2139/ssrn.3647336","url":null,"abstract":"When should specific performance be available for breach of contract? This question has engaged generations of legal economists and philosophers, historians and comparativists. Yet none of these disciplines have provided a persuasive answer. This Article provides a normatively-attractive and conceptually-coherent account. Respect for the autonomy of the promisor’s future self explains why expectation damages are, and should be, the ordinary remedy for contract breach. Also, this same normative commitment to the contracting parties’ autonomy best justifies the “uniqueness exception,” where specific performance is typically awarded, and the personal services exclusion, where it is not. For the most part, the boundaries of specific performance track the common law’s underlying commitment to autonomy. But not entirely. There’s still work to be done, and this Article points the way with concrete doctrinal reforms that can better align specific performance with its animating principles.","PeriodicalId":383923,"journal":{"name":"LSN: Labor & Employment Contracts (Topic)","volume":"102 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121397017","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 : 2018-12-12DOI: 10.17159/1727-3781/2018/V21I0A5129
Andre Louw
This piece, which is in three parts, will revisit the importation of fairness into the employment contract (outside and independent of the fairness-based provisions of our labour legislation) by a line of Supreme Court of Appeal (SCA) judgments during the 2000s. This process culminated in the recognition of an "implied duty of fair dealing" in the common-law employment contract. This piece will discuss such developments, will argue that such an implied duty still forms part of our law (despite apparent consensus in the literature that the SCA turned its back on such earlier judgments), will critically examine some of the arguments for and against the recognition of such a duty, and will then consider the issue within the broader context of the role of good faith and fairness in our general law of contract.
{"title":"'The Common Law Is … not what It used to be': Revisiting Recognition of a Constitutionally-Inspired Implied Duty of Fair Dealing in the Common Law Contract of Employment (Part 1)","authors":"Andre Louw","doi":"10.17159/1727-3781/2018/V21I0A5129","DOIUrl":"https://doi.org/10.17159/1727-3781/2018/V21I0A5129","url":null,"abstract":"This piece, which is in three parts, will revisit the importation of fairness into the employment contract (outside and independent of the fairness-based provisions of our labour legislation) by a line of Supreme Court of Appeal (SCA) judgments during the 2000s. This process culminated in the recognition of an \"implied duty of fair dealing\" in the common-law employment contract. This piece will discuss such developments, will argue that such an implied duty still forms part of our law (despite apparent consensus in the literature that the SCA turned its back on such earlier judgments), will critically examine some of the arguments for and against the recognition of such a duty, and will then consider the issue within the broader context of the role of good faith and fairness in our general law of contract. \u0000 \u0000 ","PeriodicalId":383923,"journal":{"name":"LSN: Labor & Employment Contracts (Topic)","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127266415","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 duty to provide reasonable accommodation is one of the most important measures to achieve equal opportunities of people with disabilities. Reasonable accommodation recognises the relevance of 'impairment', and it is designed to inter alia increase the employment of people with disabilities. The importance of this duty was such that it was configured in article 5 Directive 2000/78 and as a key measure in the Convention on the Rights of Persons with Disabilities. Thus, the duty to provide reasonable accommodation has become both a European and an International norm. In light of this, this working paper aims to analyse the European configuration of the duty to provide reasonable accommodation in the workplace of People with Disabilities, and its role in the extinction of an employment contract. Specifically, this contribution seeks to assess the current configuration and effectiveness of reasonable accommodation, in light of the legal framework (Directive 2000/78) and its interpretation by the Court of Justice of the European Union. Therefore, it will examine, at a European level, the possibilities offered by the configuration of reasonable accommodation, as a mechanism for the maintenance of employment and an obstacle to termination of employment contracts of people with disabilities.
{"title":"The European Duty to Provide Reasonable Accommodation for People with Disabilities. Reflections Regarding the Duties’ Role in the Extinction of Employment Contracts","authors":"David Gutiérrez","doi":"10.2139/ssrn.3114760","DOIUrl":"https://doi.org/10.2139/ssrn.3114760","url":null,"abstract":"The duty to provide reasonable accommodation is one of the most important measures to achieve equal opportunities of people with disabilities. Reasonable accommodation recognises the relevance of 'impairment', and it is designed to inter alia increase the employment of people with disabilities. The importance of this duty was such that it was configured in article 5 Directive 2000/78 and as a key measure in the Convention on the Rights of Persons with Disabilities. Thus, the duty to provide reasonable accommodation has become both a European and an International norm. In light of this, this working paper aims to analyse the European configuration of the duty to provide reasonable accommodation in the workplace of People with Disabilities, and its role in the extinction of an employment contract. Specifically, this contribution seeks to assess the current configuration and effectiveness of reasonable accommodation, in light of the legal framework (Directive 2000/78) and its interpretation by the Court of Justice of the European Union. Therefore, it will examine, at a European level, the possibilities offered by the configuration of reasonable accommodation, as a mechanism for the maintenance of employment and an obstacle to termination of employment contracts of people with disabilities.","PeriodicalId":383923,"journal":{"name":"LSN: Labor & Employment Contracts (Topic)","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125353816","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 purpose of this chapter is to illuminate the breadth and potential of behaviorally informed legal policy. We argue that currently policy approaches that encompass behavioral insights often overlook a fuller picture of psychology. A narrow approach limits the successful integration of behavioural insights into the legal system. This chapter suggests ways to move toward harmonization between the various law and psychology schools of thought. The need for such harmonization stems not only from the independent development of each strand, absent, for the most part, coherent integration and exchange, but also because this lack of awareness of the insights developed in related areas of law and psychology may lead to very limited and sometimes inadvertent policy recommendations. To meet this challenge, the paper suggests the need to balance some of the tensions which emerge from different aspects of psychology into a proposed framework of behavioural trade-offs. In particular we will focus in this chapter on taxonomy with four main trade-offs. Outcome vs. Process; Invisible vs. Expressive Law; Trusting vs. Monitoring; and Universal vs. Targeted Nudging. By demonstrating how actual policy concerns could be better understood by accounting for these trade-offs, the chapter will contribute to a more informed and nuanced path of EU behavioural-based legal policy.
{"title":"Behavioral Trade-Offs: Beyond the Land of Nudges Spans the World of Law and Psychology","authors":"Y. Feldman, Orly Lobel","doi":"10.2139/ssrn.2439179","DOIUrl":"https://doi.org/10.2139/ssrn.2439179","url":null,"abstract":"The purpose of this chapter is to illuminate the breadth and potential of behaviorally informed legal policy. We argue that currently policy approaches that encompass behavioral insights often overlook a fuller picture of psychology. A narrow approach limits the successful integration of behavioural insights into the legal system. This chapter suggests ways to move toward harmonization between the various law and psychology schools of thought. The need for such harmonization stems not only from the independent development of each strand, absent, for the most part, coherent integration and exchange, but also because this lack of awareness of the insights developed in related areas of law and psychology may lead to very limited and sometimes inadvertent policy recommendations. To meet this challenge, the paper suggests the need to balance some of the tensions which emerge from different aspects of psychology into a proposed framework of behavioural trade-offs. In particular we will focus in this chapter on taxonomy with four main trade-offs. Outcome vs. Process; Invisible vs. Expressive Law; Trusting vs. Monitoring; and Universal vs. Targeted Nudging. By demonstrating how actual policy concerns could be better understood by accounting for these trade-offs, the chapter will contribute to a more informed and nuanced path of EU behavioural-based legal policy.","PeriodicalId":383923,"journal":{"name":"LSN: Labor & Employment Contracts (Topic)","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127683493","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}
Structural changes in the economy that contributed to high unemployment have combined with global wage competition to destroy the contract-making and contract-enforcement powers of unions. Supporters of labor uniformly insist on defining the role of unions as contractual, and condemn the Supreme Court's Pyett decision that permits unions to take control of their members' legal claims. Yet unions' contractual powers have dwindled under the National Labor Relations Act, thereby leaving workers vulnerable to the bargaining demands of their employers. This article shows how Pyett can renew the importance of unions. The Article argues that read appropriately, Pyett is positively transformative in the same way as the Steelworkers Trilogy. Although the Pyett decision did not offer a compelling justification for its conclusion that unions are authorized to bargain about antidiscrimination rights, unions' effective advocacy for their members' antidiscrimination claims may be a practical necessity today. The Article focuses on Pyett's potential to transform the workplace by eliminating the line between contract and legal disputes. Using the Trilogy as a backdrop, and antidiscrimination rights as an example, the article addresses the theoretical and practical concerns cited as obstacles to Pyett's viability. It provides original answers to the questions Pyett left open and provides a roadmap on how the decision may be implemented contractually to advance employers' and workers' interests.
{"title":"Using Pyett to Counter The Fall of Contract-Based Unionism in a Global Economy","authors":"Stephen A. Plass","doi":"10.15779/Z38BD1F","DOIUrl":"https://doi.org/10.15779/Z38BD1F","url":null,"abstract":"Structural changes in the economy that contributed to high unemployment have combined with global wage competition to destroy the contract-making and contract-enforcement powers of unions. Supporters of labor uniformly insist on defining the role of unions as contractual, and condemn the Supreme Court's Pyett decision that permits unions to take control of their members' legal claims. Yet unions' contractual powers have dwindled under the National Labor Relations Act, thereby leaving workers vulnerable to the bargaining demands of their employers. This article shows how Pyett can renew the importance of unions. The Article argues that read appropriately, Pyett is positively transformative in the same way as the Steelworkers Trilogy. Although the Pyett decision did not offer a compelling justification for its conclusion that unions are authorized to bargain about antidiscrimination rights, unions' effective advocacy for their members' antidiscrimination claims may be a practical necessity today. The Article focuses on Pyett's potential to transform the workplace by eliminating the line between contract and legal disputes. Using the Trilogy as a backdrop, and antidiscrimination rights as an example, the article addresses the theoretical and practical concerns cited as obstacles to Pyett's viability. It provides original answers to the questions Pyett left open and provides a roadmap on how the decision may be implemented contractually to advance employers' and workers' interests.","PeriodicalId":383923,"journal":{"name":"LSN: Labor & Employment Contracts (Topic)","volume":"276 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115211360","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 increased use of email and the internet in the workplace raises important legal questions for workers and employers. The purpose of this paper is to explore some of the legal implications of use by employees of workplace email and internet systems, with particular focus on employer monitoring of the use of email and internet and its implications for employee privacy.
{"title":"Monitoring Employees' Email and Internet Use at Work - Balancing the Interests of Employers and Employees","authors":"K. Wheelwright","doi":"10.2139/SSRN.2295238","DOIUrl":"https://doi.org/10.2139/SSRN.2295238","url":null,"abstract":"The increased use of email and the internet in the workplace raises important legal questions for workers and employers. The purpose of this paper is to explore some of the legal implications of use by employees of workplace email and internet systems, with particular focus on employer monitoring of the use of email and internet and its implications for employee privacy.","PeriodicalId":383923,"journal":{"name":"LSN: Labor & Employment Contracts (Topic)","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121966752","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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