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The product of a unique collaboration between academic scholars, legal practitioners, and technology experts, this Handbook is the first of its kind to analyze the ongoing evolution of smart contracts, based upon blockchain technology, from the perspective of existing legal frameworks - namely, contract law. The book's coverage ranges across many areas of smart contracts and electronic or digital platforms to illuminate the impact of new, and often disruptive, technologies on the law. With a mix of scholarly commentary and practical application, chapter authors provide expert insights on the core issues involving the use of smart contracts, concluding that smart contracts cannot supplant contract law and the courts, but leaving open the question of whether there is a need for specialized regulations to prevent abuse. This book should be read by anyone interested in the disruptive effect of new technologies on the law generally, and contract law in particular.
The practical importance of intangible personalty such as debt, bonds, equities, futures, derivatives and other financial instruments has never been greater than it is today. The same may be said of interests in intellectual property. Yet the assignment of these intangible assets from one to another remains difficult to understand. Assignments are often taken to operate as a form of transfer akin to conveyances of legal titles to tangible personalty. However, this conception does not accurately reflect the law of assignment as it has developed in the caselaw in England and Wales. This book sets out a different model of the workings of assignments as a matter of English law, one that provides an analytical, yet historically sensitive, framework which allows us to better understand how, and why, assignments work in the way the cases tell us they do.
This is the first Western-language research monograph detailing significant developments in consumer law and policy across the Association of Southeast Asian Nations (ASEAN), underpinned by a growing middle class and implementation of the ASEAN Economic Community from 2016. Eight chapters examine consumer law topics within ASEAN member states (such as product safety and consumer contracts) and across them (financial and health services), as well as the interface with competition law and the nature of ASEAN as a unique and evolving international organisation. The authors include insights from extensive fieldwork, partly through consultancies for the ASEAN Secretariat, to provide a reliable, contextual and up-to-date analysis of consumer law and policy development across the region. The volume also draws on and contributes to theories of law and development in multiple fields, including comparative law, political economy and regional studies.
Contract Law: Principles and Context presents the development of contract law through a considered selection of cases that are both authoritative and used as factual examples to explain the law. The text introduces readers to the nature and range of contracts, the process for making a contract, rights and duties, adjustments to contracts, vitiating factors and unfair conduct, ending contracts, and remedies and restitution. The text considers the historical development of contracts through case law and legislation, then takes the reader to particular issues with contracts as they might arise in real life and navigates a legal pathway through them. Written in a clear and engaging style, Contract Law provides a fresh, topical and accessible account of the Australian law of contract, and is an invaluable resource for contract law students and practitioners.
The phrase 'sanctity of contracts' implies that contracts should always be strictly enforced. But when this objective is relentlessly implemented ruinous burdens are sometimes imposed on one party and extravagant enrichments conferred on the other. Despite recognition of the need to control highly unreasonable contracts in various particular contexts, there remain many instances in which the courts have refused to modify unreasonable contracts, sometimes with extravagant results that are avowedly 'grotesque'. In the computer age assent may be inferred from a click on a screen in the absence of any real agreement to the terms, which are often very burdensome to the user. In this book, arguments are advanced in favour of recognition of a general judicial power to relieve against highly unreasonable contracts, not only for the benefit of the disadvantaged party, but for the avoidance of unjust enrichment, and for the avoidance of anomalous gaps in the law.
Problems regarding the nature of consent are at the heart of many of today's most pressing issues. For example, the #MeToo movement has underscored the need to move beyond viewing consent as a simple matter of yes or no. Consent is complex because humans and their relationships are complicated. Humans, as a result of cognitive limitations and emotional and physical vulnerabilities, are susceptible to manipulation and mistakes. Given the potential for regret, are there some things to which one should not be permitted to consent? The consentability quandary becomes more urgent with technological advances. Should we allow body hacking? Cryonics? Consumer travel to Mars? Assisted suicide? In Consentability: Consent and Its Limits, Nancy S. Kim proposes a bold, original framework for evaluating consentability, which considers the complexities surrounding consent.
The principle of party autonomy in contractual choice of law is widely recognised in the law of most jurisdictions. It has been more than thirty years since party autonomy was first accepted in Chinese private international law. However, the legal rules provided in legislation and judicial interpretations concerning the application of the party autonomy principle are abstract and open-ended. Without a critical understanding of the party autonomy principle and appropriate interpretations of the relevant legal rules, judges have not exercised their discretionary power appropriately. The party autonomy principle has been applied in a way that undermines its very purpose, that is, to protect the legitimate expectations of the parties and promote the predictability of outcomes in transnational commercial litigation. Jieying Liang addresses the question of how, when, and with what limitations, parties' choice of law clauses in an international commercial contract should be enforced by Chinese courts.
European Contract Law in the Digital Age offers an overview of the interactions between digital technologies and contract law and takes into account the two (late) 2015 EU Commission proposals on digital contracting and digital content. The book goes beyond these proposals and is grouped around the three pillars of an architecture of contract law in the digital age: the regulatory framework; digital interventions over the life-cycle of the contract; and digital objects of contracting. The discussion of the regulatory framework looks at the platforms used for digital contracting - such as Airbnb - which are particularly important instruments for the formation of digital contracts. In describing the life-cycle of the contract, this book shows how four key technologies (digital platforms, Big Data analytics, artificial intelligence, and blockchain) are being used at different stages of the contractual process, from the screening for contractual partners to formation, enforcement and interpretation. Furthermore, digitally facilitated contracting increasingly relates to digital content - for instance software or search engines - as the object of the contract but while this area has notably been shaped by the proposed Directive on Contracts for the Supply of Digital Content, this work shows that important questions remain unanswered. This book highlights how the digital dimension opens a new chapter in the concept of contracting, both questioning and revisiting many of its core concepts. It is a reliable resource on topical developments for everyone interested in digital technologies and contract law. Stefan Grundmann is Professor of European Private Law, Transnational Law and Legal Theory at Humboldt University, Berlin and the European University Institute, Florence. He has written books and commentaries in several languages in contract law, banking law and company law, as well as in private law theory. He is President of the Society of European Contract Law.
This book revolves around major legal developments in the fields of European contract law and tort law from 1981 to today and examines whether similarities or divergences can be observed. It examines how opposing concepts such as weaker party protection (consumers as well as SME) and freedom of contract and fault principle are balanced. It also focuses on Europeanisation and constitutionalisation of both contract and tort law and the need to adjust the law in response to digitalisation and new technological, environmental or financial risks. Furthermore, the law of obligations nowadays emerges from very different sources and directions (top-down, bottom-up, but also crossing-over and diagonal). Norms of the law of obligations are not only being made by national legislators and courts, but also by European institutionalised lawmakers and (increasingly important) by private actors, organisations and networks. This book illustrates that the law of obligations evolves in a continuing process of waves. Contradictory tendencies in contract law alternate in focuses on the demands of the free market and the core value of party autonomy on the one hand and on the concept of fairness and weaker-party protection on the other hand. Tort law shows movements discarding former limitations of liability and embracing liability of wider scope and vice versa returns to more restricted approaches.
The law of commercial remedies raises a number of important doctrinal, theoretical and practical controversies which deserve sustained and rigorous examination. This volume explores such controversies and suggests solutions, which is essential to ensure that the law is defensible, clear and just. With contributions from twenty-three leading academic and practitioner experts, this book addresses significant issues in the law which, taken together, range across the entire remedial jurisdiction as it applies to commercial disputes. The book primarily focuses on the resolution of controversies in the English law of commercial remedies, but recent developments elsewhere are also considered, especially in other common law jurisdictions. The result provides remarkably comprehensive coverage of the field which will be of relevance to academics, students, judges and practitioners.
This concise landmark in law and jurisprudence offers the first coherent, liberal account of contract law. The Choice Theory of Contracts answers the field's most pressing questions: what is the 'freedom' in 'freedom of contract'? What core values animate contract law and how do those values interrelate? How must the state act when it shapes contract law? Hanoch Dagan and Michael Heller - two of the world's leading private law theorists - show exactly why and how freedom matters to contract law. They start with the most appealing tenets of modern liberalism and end with their implications for contract law. This readable, engaging book gives contract scholars, teachers, and students a powerful normative vocabulary for understanding canonical cases, refining key doctrines, and solving long-standing puzzles in the law.
This is the first comprehensive analysis of the extent to which the Charter of Fundamental Rights of the European Union will influence the development of contract and commercial law at a European level. The essays in this volume examine how the Court of Justice has already used the Charter to steer the law governing consumer transactions, financial contracts, contracts of employment, self-employment, tenancies, and other contractual arrangements. They then proceed to assess the likely future impact of the Charter on EU contract law, using a variety of legal, historical, and theoretical perspectives. These original assessments by distinguished scholars range from claims that the Charter will only have a mild indirect influence to arguments that the Charter provides the necessary legal foundations for EU contract law and for a market society within a multi-level system of governance. Questions are raised about the scope of application of the Charter; its indirect but significant effect on national legal systems, especially in improving the effectiveness of EU law; and whether the rights and principles of the Charter may sometimes have direct effect on contracts by leading a court to disapply national law. Hugh Collins FBA is the Vinerian Professor of English Law, All Souls College, Oxford. 2 Intersentia Intersentia 3
Obligations: Law and Language is the first work of its kind to examine in depth the fundamental language used by courts, legislators, and academic commentators when describing the nature of obligations law. A comparative perspective is taken, examining the law of England, Scotland, the United States, Canada, and Australia, and an in-depth analysis is provided of the major legal commentaries, statutes, and case law from each jurisdiction. In exploring such fundamental words as obligation, liability, debt, conditional, unilateral, mutual, and gratuitous, the author examines the often confusing and contradictory ways in which basic structural language has been used, and brings clarity to a core area of legal theory and practice.
This book offers an innovative and systematic analysis of the new rules on consumer sales contracts in several EU Member States after the implementation of Directive 2011/83/EU on consumer rights. The national reports, all written by highly respected authors, focus in particular on the scope of application of the implementing provisions of the Consumer Rights Directive and their interplay with the already existing rules on consumer contracts, as well as on the relationship between the national 'special' rules concerning consumer sales and the general domestic rules on sales contracts. Furthermore, each contribution looks ahead by weighing the future development of European contract law and its possible interaction with national regulation of consumer sales. The book therefore addresses not only academics but also practitioners and members of the European institutions who are dealing with the task of shaping new European consumer and contract law. With national reports by: Giovanni De Cristofaro (Introduction and Italy), Christiane Wendehorst and Oliver Paschel (Austria), Evelyne Terryn (Belgium), Carole Aubert de Vincelles (France), Martin Schmidt-Kessel (Germany), Marco Loos (the Netherlands), Fryderyk Zoll (Poland), Jorge Morais Carvalho (Portugal), Mauricio Troncoso (Spain), and Christian Twigg-Flesner (United Kingdom)
The EU is committed to making the Single Market fit for the digital age, by enhancing the protection of consumers and data subjects, while providing businesses with the legal certainty they need to invest in this field and support growth and innovation. In this context, European Contract Law and the Digital Single Market, an edited collection consisting of carefully selected contributions by leading scholars, addresses the impact of digital technology on European Private Law in light of the latest legislative developments including the EU Regulation of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on free movement of such data, as well as the European Commission's proposals of 9 December 2015 for a Directive on the supply of digital content, for a Directive on online and other distance sale of goods and for a Regulation on the cross-border portability of online content services in the internal market. The book analyses new and urgent issues in the field of contract, data protection, copyright and private international law: namely the EU approach to personal information as a tradeable commodity and as the object of a fundamental right of the individuals concerned, the protection of consumers' and users' rights in contracts for the supply of digital content and on online and other distance sales of goods, the cross-border portability of online content services, the new features of standard contracts in the digital market and the issues surrounding the emergence of the so called platform economy. Written for both scholars and practitioners, this edited collection provides clear answers to the challenges posed by the digital revolution and acts as a solid basis for further developments of EU law.With contributions by: Christoph Busch, Joana Campos Carvalho, Alberto De Franceschi, Pietro Franzina, Martin Gebauer, Geraint Howells, Peter Kindler, Michael Lehmann, Rodrigo Momberg, Jorge Morais Carvalho, Karl-Nikolaus Peifer, Reiner Schulze, Christian Twigg-Flesner, and Herbert Zech.
The French projet d'ordonnance, which reformed contract law, the general regime of obligations and the proof of obligations appeared in February 2015. One year later, in February 2016, the final version of the ordonnance was published. The ordonnance thoroughly reforms French contract law and the law of obligations and will enter into force in October 2016.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. Whereas Van Loock briefly sketches the antecedents and the outcome of the reform, the other authors each tackle specific topics of the reform that surprised and/or excited the legal community. Pannebakker tackles the precontractual phase and assesses the attractiveness of the reform for international commercial transactions. Peeraer gives a critical overview of the doctrine of nullity in the ordonnance. Leone explores the potential impact of the 'significant imbalance' test in the new ordonnance on employment contracts. In their contributions, Lutzi and Oosterhuis discuss the much-debated provision that introduces the theory of imprévision. The contributions by Jansen and Verkempinck are both focused on remedies: the newly introduced price reduction remedy and damages. Storme criticises the new rules on set-off in the ordonnance, and Mahé addresses the question why the final version of the ordonnance omitted the issue of interpersonal effects of fundamental rights on contractual freedom.
The thematic argument that forms the core of this book holds that it is important in understanding the European Union's impact on private and especially contract law that the European Union has only a limited competence conferred by its founding Treaties, but that, largely as a consequence of the Court's generous reading of the scope of the internal market, those limits are less of a restraint than may initially be supposed and that, moreover, pursuit of, in short, social justice is less constitutionally elusive than is often alleged. It provides an authoritative account of the actual and possible scope of the European Union's role and also interrogates the question whether the European Union's influence on private and especially contract law is benign or disruptive, in particular in the context of that constitutionally limited competence. This is timely, not least because the Commission's review of contract law, initiated in 2001, has still not run its course and may never do so. It is a continuing process. And the constitutional dimension has tended to be neglected. The book insists on the need for awareness of a complex interaction of often ambiguous constitutional rules, often politically inconsistent institutional rhythms and often evasive judicial pronouncements. And it shows how the European Union's role is not simply a niche area that has grown erratically but ultimately remains on the edges of the European Union's core public law activities, but rather that the rise of European Union private and especially contract law asks some vividly important questions about the principle and practice of conferred competence and about the choice of priorities in market regulation as protective instincts and deregulatory impulses collide. The adjustments made by the Treaty of Lisbon, especially but not only the grant of binding effect to the Charter of Fundamental Rights, have sharpened the interest. Contract Law of the Internal Market is written for both private and EU lawyers.
Contracts, the foundation of economic activity, are both vital and misunderstood. Contracts in the Real World, 2nd edition corrects common misunderstandings through a series of engaging stories involving such notable individuals as Martin Luther King, Maya Angelou, Lady Gaga, and Donald Trump. Capturing the essentials of this subject, the book explores recurring issues in contracting and shows how age-old precedents and wisdom still apply today and how contract law's inherent dynamism cautions against exuberant reforms. The accessible yet rigorous approach will appeal to the general reader and specialists alike, and to both teachers and students of contracts.
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.
This is the first comprehensive work to capture the rise of moral damages (non-pecuniary loss) in European contract law through a historical and comparative analysis. Unique features of this study include the first classification scheme of the systems into liberal, moderate and conservative regimes, a taxonomy of non-pecuniary loss drawn from a European-wide jurisprudence, and a comprehensive bibliography of the subject. Written by a leading academic on comparative law, Palmer's precise and practical insights on Europe's leading cases will be of great interest to academic researchers and practitioners alike.