Law of Contract

This paper argues that, contrary to recent scholarly accounts, at common law there is no ‘right to performance’ and that, at most, there is a ‘right to damages substituting for performance’, or a defeasible right to performance where specific relief is available. It is for this reason that many scholars talk of the plaintiff’s ‘performance interest’ instead. Nonetheless, the aim of all expectation damages, whether measured according to difference in value or cost of cure, is to vindicate the plaintiff’s performance interest and to provide a pecuniary substitute for performance itself. This aim is subject to other competing aims, including the presumption that a plaintiff should mitigate and minimise his or her loss. This paper illustrates through English and Australian case law how expectation damages substitute for performance, but also explores other competing aims at play in the cases.

L’indagine sul mutuo dissenso presentata in questo libro ruota intorno a tre concetti chiave: «contrarietà», «retroattività» e «neutralizzazione». La riflessione sulla «diversità» insita nel concetto di «contrarietà» suggerisce il passaggio dalla concezione tradizionale del mutuo dissenso come «atto uguale e contrario » all’atto presupposto ad una concezione della figura come «atto contrario e diverso » dal primo. L’esplorazione della «retroattività» conduce, in secondo luogo, a riconoscere in essa una metafora giuridica che ha come linea d’orizzonte non una realtà «passata» («retroattività ex tunc»), bensì una realtà «ipotetica» («retroattività ex hypothesi»). Il «capovolgimento prospettico» della retroattività implicito in questa configurazione consente di evidenziare le ragioni assiologiche che impediscono di scorgere nella figura esaminata un’ipotesi di retroattività «automatica» praeter legem. L’indagine mostra, infine, la possibilità di riconoscere nello scopo di «neutralizzazione» negoziale la funzione specifica del mutuo dissenso e, più in generale, di tutti i contrarii actus. In vari contesti semantici, infatti, i processi di neutralizzazione non indicano esclusivamente un «annientamento» o una semplice «estinzione», ma una serie d’azioni più complessa, variabile a seconda della specifica realtà da «neutralizzare». L’individuazione di questa funzione (unitaria, fissa e costante) restituirà l’immagine di una figura contrattuale ad oggetto ampio e ad effetti variabili, capace altresì di produrre (direttamente e autonomamente) effetti reali.

At a time when neoliberalism has become an accepted term in public debate to refer to the current state of modern societies and their political economies, Kean Birch critically analyses the conflicting theories that shape our understanding of ‘neoliberalism’.

With an ever-expanding variety of perspectives on the concept of neoliberalism, it is increasingly difficult to identify any commonalities. This book explores how different people understand neoliberalism, and the contradictions in thinking of neoliberalism as a market-based ethic, project, or order. Detailing the intellectual history of ‘neoliberal’ thought, the variety of critical approaches and the many analytical ambiguities, Kean Birch presents a new way to conceptualize contemporary political economy and offers potential avenues for future research through a judicious exploration of ‘neoliberal’ practices, processes, and institutions.

This work will be an essential resource for undergraduate and postgraduate students, scholars, and researchers to critically assess the concept of neoliberalism across many disciplines. The book will also serve as a general introduction to a wider audience interested in the term ‘neoliberalism’, its potential pitfalls, and its contested future.

Section 52(2) of the South African Consumer Protection Act, 68 of 2008 (“CPA”) lists factors that courts “must” consider when applying section 48, the prohibition of unfair contract terms. Section 52(2) could be improved, inter alia as it does not contain sufficient guidance about the substantive fairness of contract terms. Several other factors, not currently listed in section 52(2), have crystallised in German case law and academic commentaries on § 307(1) of the German Civil Code, which essentially provides that “provisions in standard business terms are ineffective if contrary to the requirement of good faith, they unreasonably disadvantage the other party to the contract with the user.” Although the scope of application of § 307(1) is different from that of section 48, the German case law and academic commentary are useful as most terms in consumer contracts are not negotiated anyway. German courts identify and weigh the interests of both parties in the light of the principles of proportionality and necessity. The degree to which the term differs from what the law would be in its absence is an important factor. In relation to contract terms governing risk allocation, the main questions asked are in whose sphere the risk is likely to arise and which party is in a better position to avoid the risk and to insure against it. Conformity with established standards in the sector is also a relevant factor, although its application is qualified. The other terms of the contract or of another contract on which it is dependent are also relevant. Principles that are more specific have developed in German law in respect of the possibility that other terms may increase or decrease the suspicion against a clause. Material inequality between the parties is also a relevant factor, which the South African Law Commission has formulated as whether there is a lack of reciprocity in an otherwise reciprocal contract. The article also lists further factors set out in the EC Directive.

Con la sentenza n. 23978/2015 la Corte di cassazione si pronuncia nuovamente sulla disciplina del comodato di casa familiare. Confermando il precedente orientamento, inaugurato dalle Sezioni Unite nel 2004 e ribadito dalle stesse nel 2014, il giudice di legittimità dichiara che il comodato di immobile destinato ad uso familiare si inquadra nello schema contrattuale del comodato per relationem, derivando dalla destinazione dell’immobile un implicito termine di durata, e ciò indipendentemente dall’instaurarsi di una crisi coniugale. Contestualmente, si riconosce come la presenza di un preventivo accordo tra le parti autorizzi il comodante ad ottenere la restituzione del bene ante tempus. Tale accordo rappresenterebbe, dunque, accanto alla sopravvenienza di un urgente ed impreveduto bisogno, una deroga al divieto di recesso ad nutum imposto al comodante.

Аннотация: В статье исследуется казус ручательства гражданина по собственному обязательству, заключенному им в качестве предпринимателя. Проблема, вынесенная в заглавие статьи, заключается в неоднозначном понимании судами казуальности, «двойного поручительства». Если истец, предъявляет два самостоятельных иска к одному и тому же лицу, суд общей юрисдикции часто удовлетворяет оба иска, в то время как третейские и арбитражные суды занимают противоположную позицию. Приведет ли такое «поручительство» к возникновению субсидиарной ответственности? Допускается ли двойная ответственность одного и того же лица за неисполнение обязательства? Является ли ручательство за себя мнимой (притворной) сделкой или оно допустимо по закону? Раскрывая историческое и современное содержание понятия «самопоручительство» автор обосновывает вывод о юридической ничтожности поручительства за себя de lege lata. Summary: The intensively extending market of banking services and the desire to guarantee fast and effective debt recovery determines the implementation of various experimental security instruments including those which are beyond the legal and conceptual framework of Civil Law. The article in question deals with an example of such " poorly engineered " legal construction – the guaranty given by a person for himself, to which author gives the name " self-suretyship ". Using the historic, critical and analytical methods the author articulates ancient and medieval legal concepts of self-suretyship and states that it has nothing common with the modern contracts of guaranty given by a person for himself. He concludes the article with the reasoned arguments for the nullity of such guaranty de lege lata.

Apparent advocacy is one of the main components of appearance theory. The importance of apparent advocacy is evident since lawyering or advocacy has a great importance along a significant role in facilitation of legal relationships. Individuals can benefit from lawyering entities in the sense of making personal contracts by using representatives. Lawyering plays an important role in terms of facilitation of transactions and contracts. In fact some peoples' job is to make contracts while representing other individuals. The rules and regulations of advocacy have been set in support of individuals in order to make people motivated towards interacting with lawyers so that this entity is able to play its role in flow of capital and boom of trades. In other words, the domain of advocacy must take a step further than the sole lawyer-client relationship and instead, its sentences should be redistributed based on supporting social trust. An interesting solution for creating trust towards lawyers amongst the public is supporting for legal trust in credible appearance which is followed by apparent advocacy. This paper elaborates on concept, instances, and conditions of realization and impacts of apparent advocacy.

Recent years have seen a marked increase in the number of attorneys switching firms, many of whom seek to take with them the business of their former firm’s clientele.  While the contours of permissible departure-based solicitation were once clearly and narrowly circumscribed by the rules of legal ethics, the continued validity of those restrictions is seriously placed in doubt by the principles enunciated in Supreme Court decisions of the past decade dealing with commercial speech about legal services.

In this Article, Professor Johnson endeavors to comprehensively chart and evaluate the myriad of aspects of the new jurisprudence on departure-based solicitation which is now emerging in piecemeal fashion from court decisions, ethics opinions, and legal scholarship.  The Article considers both the disciplinary ramifications of such conduct, and the closely related question of whether such solicitation may give rise to civil liability under the law of torts or the law of agency.  Concluding that certain varieties of departure-based solicitation are ultimately likely to be deemed permissible, Professor Johnson discusses the issue of whether, and by what means, a firm may endeavor to protect itself from loss of clients to an attorney who leaves the firm.  Finally, a model rule of ethics is proposed for the purpose of rectifying, in a manner consistent with Supreme Court precedent, the current precedential confusion in the field.

Ghana has experienced rapid development in the area of technology, however, legislation in this area does not mirror technological advancement.
This paper shall therefore explain with judicial precedent explain the historical underpinnings of traditional signatures and what constitute its validity. The paper shall further explain as to whether or not the prevalence of electronic signatures have modified the use and validity of traditional signatures.

The paper identifies three different approaches to social justice in contract law, corresponding to a classical liberal model, an ordoliberal model and the model consistent with European post-war constitutionalism.
(i) In the classical liberal model law enforces the outcome of the social conflict and attributes juridical strength to social strength: contract law protects the spontaneous result of social conflict and the execution of the contract as it has been freely stipulated. This model is based on conflict, whose result is embedded by law.
(ii) Ordoliberals intended to complete the bourgeois revolution, which assured individual freedom, but missed to develop an order in which individual freedom could be developed. This is exactly what the state had to do with interventions necessary to prevent market failures, i.e. necessary to conform and functionalize economic freedoms for the survive of an economic system based on competition. In line with this, contract law has to hide and shape social conflict, adapting the behaviour of contractual parties to achieve the aims pursued by the legal system. Cooperation between the parties to the contract has to be encouraged, i.e. solidarity vis-à-vis the system. There is no direct intervention aimed at balancing social weakness and, if this occurs, it is only an indirect effect. Ordoliberalism is now the paradigma of EC-contact law, as it is made clear by the many references to social market economy. EC-contract law based on cooperation is a contract law without solidarity: social justice may be an effect of contract regulation, but it is only a indirect effect.
(iii) European national constitutionalism reacted at the end of 2nd world war to the ordoliberal paradigm. Solidarity became a way of distributing wealth: vertical solidarity between the State and its citizens and horizontal solidarity among citizens. Vertical solidarity is the one assured by the welfare state: it shapes indirectly the market, but it does not affect the market. Horizontal solidarity affects the market in a way that is different from the idea of enhancing cooperation between market operators towards a result that is beyond their interests. Conflict is therefore recognised, but is shaped ensuring equality arms for the parties: law fights social weakness with legal strength and social strength with legal weakness. This is the core of a social justice model which is based on both conflict and solidarity.

The transition from the bourgeois to capitalist society, that is the complement of the French with the Industrial Revolution, transformed the proprietary order into a proprietary organism, incapable of producing emancipation. Private law was still the foundation of society and still had to free the individual, but pluralism had to be opposed in order to force economic behavior into cooperative schemes able to produce systemic balance and development. This is the point of reference for understanding the public dimension of contract law consistent with ordoliberalism, where citizenship is reinterpreted through market categories: those stressing that producers and consumers hold delegated economic police functions and that they have to react automatically to stimulations coming from the market.