Download or read book The Application of the Theory of Efficient Breach in Contract Law written by Wenqing Liao and published by Ius Commune: European and Comparative Law Series. This book was released on 2015 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: This book analyses the theory of efficient breach in English sales law, European Union contract law and Chinese contract law. It analyses the framework of the efficient breach theory and reconsiders the implications of this theory. According to the traditional efficient breach theory, the remedy of expectation damages is able to motivate efficient breach, which brings the breaching party economic surplus without making the non-breaching party worse off. The essential problems are how to motivate contract parties to make rational decisions and how to solve cases where performance of a contract turns out to be less efficient after its conclusion. The second part of the book further extends the efficient breach theory to the study of contract law systems by analysing how exactly those laws react to breach and what solutions are adopted by them. The comparison of these three systems is more than a mere description of the differences and similarities in the content. More importantly, this comparative research also analyses whether or not the differences between these systems will influence the level of efficiency produced by each legal system by taking account of the different traditions and the concepts of contracts involved in each legal system. Researchers in contract law will also be interested in this approach, particularly for re-thinking the question of whether one legal system is definitely better or worse than the other two. (Series: Ius Commune Europaeum - Vol. 142) Subject: Contract Law, Sales Law, European Law, Chinese Law, International Law]
Download or read book Philosophical Foundations of Contract Law written by Gregory Klass and published by OUP Oxford. This book was released on 2014-12-18 with total page 417 pages. Available in PDF, EPUB and Kindle. Book excerpt: In recent years there has been a revival of interest in the philosophical study of contract law. In 1981 Charles Fried claimed that contract law is based on the philosophy of promise and this has generated what is today known as 'the contract and promise debate'. Cutting to the heart of contemporary discussions, this volume brings together leading philosophers, legal theorists, and contract lawyers to debate the philosophical foundations of this area of law. Divided into two parts, the first explores general themes in the contract theory literature, including the philosophy of promising, the nature of contractual obligation, economic accounts of contract law, and the relationship between contract law and moral values such as personal autonomy and distributive justice. The second part uses these philosophical ideas to make progress in doctrinal debates, relating for example to contract interpretation, unfair terms, good faith, vitiating factors, and remedies. Together, the essays provide a picture of the current state of research in this revitalized area of law, and pave the way for future study and debate.
Download or read book Breach of Contract written by Oliver Hofmann and published by Springer Nature. This book was released on 2021-02-11 with total page 268 pages. Available in PDF, EPUB and Kindle. Book excerpt: “Efficient breach” is one of the most discussed topics in the literature of law and economics. What remedy incentivizes the parties of a contract to perform contracts if and only if it is efficient? This book provides a new perception based on an in-depth analysis of the impact the market structure, asymmetry of information, and deviations from the rational choice model have, comprehensively. The author compares the two predominant remedies for breach of contract which have been adopted by most jurisdictions and also found access to international conventions like the Convention on Contracts for the International Sale of Goods (CiSG): Specific performance and expectation damages. The book illustrates the complexity such a comparison has under more realistic assumptions. The author shows that no simple answer is possible, but one needs to account for the circumstances. The comparison takes an economic approach to law applying game theory. The game-theoretic models are consistent throughout the entire book which makes it easy for the reader to understand what effects different assumptions about the market structure, the distribution of information, and deviations from the rational choice model have, and how they are intertwined.
Download or read book Breach of Contract written by Oliver Hofmann and published by . This book was released on 2021 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: "Efficient breach" is one of the most discussed topics in the literature of law and economics. What remedy incentivizes the parties of a contract to perform contracts if and only if it is efficient? This book provides a new perception based on an in-depth analysis of the impact the market structure, asymmetry of information, and deviations from the rational choice model have, comprehensively. The author compares the two predominant remedies for breach of contract which have been adopted by most jurisdictions and also found access to international conventions like the Convention on Contracts for the International Sale of Goods (CiSG): Specific performance and expectation damages. The book illustrates the complexity such a comparison has under more realistic assumptions. The author shows that no simple answer is possible, but one needs to account for the circumstances. The comparison takes an economic approach to law applying game theory. The game-theoretic models are consistent throughout the entire book which makes it easy for the reader to understand what effects different assumptions about the market structure, the distribution of information, and deviations from the rational choice model have, and how they are intertwined.
Download or read book Justice in Transactions written by Peter Benson and published by Harvard University Press. This book was released on 2019-12-03 with total page 625 pages. Available in PDF, EPUB and Kindle. Book excerpt: Legal thinkers typically justify contract law on the basis of economics or promissory morality. But Peter Benson takes another approach. He argues that contract is best explained as a transfer of rights governed by a conception of justice. The result is a comprehensive theory of contract law congruent with Rawlsian liberalism.
Download or read book Efficient Breach written by Gregory Klass and published by . This book was released on 2017 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: The theory of efficient breach is the best known, and the most controversial, product of nearly half a century of economic analysis of contract law. In its simplest form, which is the one that dominates the legal imagination, the theory argues that expectation damages are good because they allow, even encourage, a party to breach when performance becomes inefficient, thereby increasing social welfare. Many noneconomists assume the theory is well supported by principles of neoclassical economics. Thus critics commonly focus on the theory's moral failings, or on problems with the neoclassical approach more generally. But today no economic thinker defends the simple theory of efficient breach. Forty years of scholarship has established that even from the streamlined perspective of neoclassical economics, the simple theory simplifies too much. Expectation damages do not sufficiently deter some types of opportunistic breach. When a contract does become inefficient, other remedies can do as good or better a job of allowing parties to avoid performance. If expectation damages do provide efficient performance incentives, they might create inefficient incentives elsewhere in the transaction. And an exclusive focus on incentives ignores other welfare-enhancing functions remedies can serve, such as risk allocation and signaling. Many noneconomic critics of efficient breach criticize a theory that no economist would defend. All this notwithstanding, contract theorists should pay attention to efficient breach. Most importantly, a revised theory of efficient breach demonstrates how remedies that apply at the end of a transaction can affect the terms chosen at its birth. In many transactions the remedy is likely to affect the price, complicating arguments about its fairness. Many parties are likely to prefer efficient remedies, posing a challenge to remedial theories that ignore efficiency altogether. And economic analysis suggest mechanisms lawmakers can use to delegate remedial choice to the parties while still giving weight to socially preferred remedies. Theorists who make principled arguments for one or another remedy should attend to economic analyses of remedial design, including the idea of efficient breach, which cast new light on these distinctive features of contract law.
Download or read book The Theory of Contract Law written by Peter Benson and published by Cambridge University Press. This book was released on 2001-02-05 with total page 365 pages. Available in PDF, EPUB and Kindle. Book excerpt: Essays addressing a variety of issues in the theory and practice of contract law.
Download or read book In Efficient Breach of Contract written by Daniel Markovits and published by . This book was released on 2016 with total page 28 pages. Available in PDF, EPUB and Kindle. Book excerpt: The expectation interest remedy requires the promisor to transfer a sum equal to the promisee's expected gain from performance if the promisor reallocates her resources to another use. The theory of efficient breach justifies the remedy because the promisor will either perform, when the promisees' gain would exceed the gain from reallocation, or breach when the promissee's gain is below. Critics of the theory argue that breach is immoral, whether efficient or not, because the promisee has a right to performance or to its gains. Both critics and supporters mistakenly elide the real issue. Contract law defines a breach as the promisor's failure to take an action the parties' contract requires or to take an action the contract forbids. Hence, if business contracts are efficient, as is commonly assumed, breaches cannot be efficient. The real issue thus is what the parties' contract requires. A contract that requires the promisor to trade a specified object or to perform a specified service is breached if the promisor fails to trade or to perform; but a contract that permits the promisor either to trade or to perform or to transfer the sum that equals the promissee's gain would only be breached if the promisor neither trades nor transfers. The expectation interest remedy is a good default if parties more commonly write the latter “dual performance contract” than the former mandatory trade contract. Both supporters and critics of efficient breach theory mistakenly suppose that parties commonly write mandatory trade contracts. It follows for them that the failure to trade is a breach, and the dispute is over the morality of breach. We show that parties commonly write dual performance contracts so the failure to trade is not a breach. Whether this is so or not, the important result is that, because contracts can be efficient but breaches cannot be, the theory of efficient breach should vanish. Rather, attention should turn to the contract interpretation issue regarding which obligations, respecting trade or transfer, the parties actually assumed.
Download or read book The French Contract Law Reform written by Sophie Stijns and published by . This book was released on 2016 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: This book results from the Contract Law Workshop of the 20th Ius Commune Conference held 26-27 November 2015. The theme of this Workshop was: The French Contract Law Reform: a Source of Inspiration? Since the conference in November 2015, all authors have incorporated comments on the final version of the ordonnance.
Download or read book Contract Law Minimalism written by Jonathan Morgan and published by Cambridge University Press. This book was released on 2013-11-07 with total page 314 pages. Available in PDF, EPUB and Kindle. Book excerpt: Commercial contract law is in every sense optional given the choice between legal systems and law and arbitration. Its 'doctrines' are in fact virtually all default rules. Contract Law Minimalism advances the thesis that commercial parties prefer a minimalist law that sets out to enforce what they have decided - but does nothing else. The limited capacity of the legal process is the key to this 'minimalist' stance. This book considers evidence that such minimalism is indeed what commercial parties choose to govern their transactions. It critically engages with alternative schools of thought, that call for active regulation of contracts to promote either economic efficiency or the trust and co-operation necessary for 'relational contracting'. The book also necessarily argues against the view that private law should be understood non-instrumentally (whether through promissory morality, corrective justice, taxonomic rationality, or otherwise). It sketches a restatement of English contract law in line with the thesis.
Download or read book Contract Law written by Brian Bix and published by Cambridge University Press. This book was released on 2012-10-15 with total page 217 pages. Available in PDF, EPUB and Kindle. Book excerpt: This book offers an accessible introduction to American contract law, useful to both first-year law students and advanced contract scholars.
Download or read book Boilerplate written by Margaret Jane Radin and published by Princeton University Press. This book was released on 2014-11-03 with total page 358 pages. Available in PDF, EPUB and Kindle. Book excerpt: Why the increasing use of boilerplate is eroding our rights Boilerplate—the fine-print terms and conditions that we become subject to when we click "I agree" online, rent an apartment, enter an employment contract, sign up for a cellphone carrier, or buy travel tickets—pervades all aspects of our modern lives. On a daily basis, most of us accept boilerplate provisions without realizing that should a dispute arise about a purchased good or service, the nonnegotiable boilerplate terms can deprive us of our right to jury trial and relieve providers of responsibility for harm. Boilerplate is the first comprehensive treatment of the problems posed by the increasing use of these terms, demonstrating how their use has degraded traditional notions of consent, agreement, and contract, and sacrificed core rights whose loss threatens the democratic order. Margaret Jane Radin examines attempts to justify the use of boilerplate provisions by claiming either that recipients freely consent to them or that economic efficiency demands them, and she finds these justifications wanting. She argues, moreover, that our courts, legislatures, and regulatory agencies have fallen short in their evaluation and oversight of the use of boilerplate clauses. To improve legal evaluation of boilerplate, Radin offers a new analytical framework, one that takes into account the nature of the rights affected, the quality of the recipient's consent, and the extent of the use of these terms. Radin goes on to offer possibilities for new methods of boilerplate evaluation and control, among them the bold suggestion that tort law rather than contract law provides a preferable analysis for some boilerplate schemes. She concludes by discussing positive steps that NGOs, legislators, regulators, courts, and scholars could take to bring about better practices.
Download or read book Foundational Principles of Contract Law written by Melvin A. Eisenberg and published by Oxford University Press. This book was released on 2018-09-20 with total page 905 pages. Available in PDF, EPUB and Kindle. Book excerpt: Foundational Principles of Contract Law not only sets out the principles and rules of contract law, it places more emphasis on what the principles and rules of contract law should be, based on policy, morality, and experience. A major premise of the book is that the best way to grasp contract law is to understand it from a critical perspective as an organic, dynamic subject. When contract law is approached in this way it is much easier to grasp and learn than when it is presented simply as a static collection of principles and rules. Professor Eisenberg covers almost all areas of contract law, including the enforceability of promises, remedies for breach of contract, problems of assent, form contracts, the effect of mistake and changed circumstances, interpretation, and problems of performance. Although the emphasis of the book is on the principles and rules of contract law, it also covers important theories in contract law, such as the theory of efficient breach, the theory of overreliance, the normative theory of contracts, formalism, and theories of contract interpretation.
Download or read book Equity Efficiency and Ethics in Remedies for Breach of Contract written by Sergio Mittlaender and published by Springer Nature. This book was released on 2022-12-02 with total page 241 pages. Available in PDF, EPUB and Kindle. Book excerpt: This book analyzes the conflict that emerges between parties after a breach of contract and how different legal remedies can best reduce conflict. Causes for conflict include equity, efficiency, and ethical reasons that parties might consider and use to blame the other or to justify breach. In the end, if not resolved through apologies or renegotiation, conflict leads to aggrievement and behavioral reactions in form of retaliation by the victim against the promisor in breach. The book provides empirical evidence from laboratory experiments for how individuals react to perceived wrongful acts such as breach of contract and for the function of legal remedies to reduce retaliation by disappointed promisees in providing them compensation. It reveals how the inequality in the outcome, and not the inefficiency of breach of contract, causes aggrievement and retaliation by victims. The book concludes with a comparative law and economic analysis of remedies for breach of contract adopted in different leading jurisdictions, with important normative implications for the American insistence on expectation damages, the French expansion of specific performance with "astreinte", the German junction of specific performance, expectation damages, and disgorgement damages, and the British timid acceptance of partial disgorgement damages. The book will appeal to scholars, researchers, and students of economics and law, interested in a better understanding of remedies for breach of contract.
Download or read book Justifying the Application of the Theory of Efficient Breach Specifically Within the Context of Commercial Contracting written by Liam Kilvington and published by . This book was released on 2018 with total page pages. Available in PDF, EPUB and Kindle. Book excerpt:
Download or read book Markets Morals and the Law written by Jules L. Coleman and published by Oxford University Press, USA. This book was released on 1998 with total page 418 pages. Available in PDF, EPUB and Kindle. Book excerpt: This collection of essays by one of America's leading legal theorists show how traditional problems of philosophy can be understood more clearly when considered in terms of law economics and political science.
Download or read book Contract in Context written by Richard Austen-Baker and published by Routledge. This book was released on 2014-08-27 with total page 174 pages. Available in PDF, EPUB and Kindle. Book excerpt: Contract in Context provides an easy to read, in depth analysis of the purpose and role of contract law and the theories that surround it. It looks at the historical development of contract law as well as providing detailed analysis of some of the leading theoretical explanations and how they are applied on an international level. The book’s accessibility is enhanced by text boxes defining key concepts and terms and by bullet-point lists and descriptions further enlivened by biographical notes for leading figures and scholars. This ensures that students are able to gain a firm grasp and a clear understanding of the narratives and theories explained in the book. Contract in Context is unique in that it is not limited to one jurisdiction, making it ideal for students around the globe wishing to develop or expand their knowledge of contract law.
