March 30, 2007
Fifty Years Ago
Fifty years ago reading. THE UNIFORM COMMERCIAL CODE AND CONTRACT LAW: SOME SELECTED PROBLEMS, 105 U. Pa. L. Rev. 836 (1957). This is an interesting and long article on Article 2. If you are wondering about the changes to Article 1 and Article 2 and the adoption of the changes by the states, it is worth remembering that in 1957, six years after Article 2 was approved, only one state, Pennsylvania, had adopted it.
March 28, 2007
Technology, Offer and Acceptance
Today the Wall Street Journal (print edition) reported that customers of UPS will be able to recall packages after they have been sent. As the story describes:
The package-delivery giant rolled out UPS Delivery Intercept, which uses technology to find a package anywhere in the Atlanta company's delivery system, including on a delivery truck. The package can then be returned to the shipper, sent to a different address, held for a future delivery date or held until the recipient picks it up.
Apparently the new service is now available, for a $10 fee.
House of Lords Okays Hindsight Limitation on Damages
A case from the English Court of Appeal that was featured here on October 28, 2005, has been affirmed affirmed today by the House of Lords. The case offers a fascinating question about the point at which damages should be calculated. Andrew Tettenborn (Exeter) sends us this report:
The case is Golden Strait Corporation v. Nippon Yusen Kubishiki Kaisha,  UKHL 12 (available on LEXIS, Westlaw or on http://www.bailii.org).
In July 1998, NYK chartered a tanker at a high rate for seven years through July 2005. The charter had a specific provision about war:
33. If war or hostilities break out between any two or more of the following countries: U.S.A., former U.S.S.R., P.R.C., U.K., Netherlands, Liberia, Japan, Iran, Kuwait, Saudi Arabia, Qatar, Iraq, both Owners and Charterers have the right to cancel this charter.
In December 2001, NYK repudiated the charter and the owners accepted the repudiation by taking the ship back. In 2003, the Second Gulf War started; had the charter still been going NYK could, and undoubtedly would, have invoked Clause 33 to cancel. Question: when the owners sued for damages, were they entitled to an award reflecting lost hire till the end of the charter (July 2005), or only till NYK could have canceled (March 2003)? The Court of Appeal held, with the charterers, that the
latter was correct. The owners appealed, but the Law Lords affirmed.
Hindsight showed that in fact the owners wouldn't have received charter hire after 2003: hence that was the measure of their loss and there was no reason to give them any more. The two dissenters (the two commercial lawyers sitting) argued that the contract rights infringed should be valued at the time of the breach: that since no-one knew then about the imminence of the Gulf War the value of those rights should reflect the full period of the charter: and that the events of 2003 should therefore
March 27, 2007
Contracts Prof Spotlight: Martín Hevia
SJD, University of Toronto
Martín is a Post-Doctoral Fellow at the Escuela de Derecho, Universidad Torcuato Di Tella at Buenos Aires, Argentina, where he teaches Contracts, Obligations and Principles of Private and Commercial Law.
Martín is a 2001 graduate of the Escuela de Derecho, Universidad Torcuato Di Tella, where he was the first Editor-In-Chief of Revista Argentina de Teoría Jurídica, a theoretically-minded journal of law. In 2000, he was an exchange student at Chicago Kent College of Law. In 2003, he was directly admitted to the SJD programme at the Faculty of Law, University of Toronto. He recently got his SJD under the supervision of Profs. Arthur Ripstein and Peter Benson. At the University of Toronto, Martín was Co-Editor-In-Chief of the Journal of Law & Equality (2004-2006) and President of the Graduate Law Students´ Association (2004-2006). He was awarded the Gordon Cressy Student Leadership Award for his extracurricular contributions to university life.
Martín's areas of research interest include the philosophical foundations of both the civil and the common law, comparative private law, and legal and political philosophy. In his doctoral dissertation, he explores the following question: if, as John Rawls famously suggests, justice is the first virtue of social institutions, how are we to understand the institution of contract law?
Further, Martín's “Kronman on Contract Law and Distributive Justice” is forthcoming in the Journal of Contract Law.
In accordance with the general spirit at the Escuela, as a private law professor, Martín aims at breaking down the disciplinary and idiomatic barriers that isolate private law scholarship by taking advantage of theoretical tools available in fields like philosophy, economics, and history to gain a deeper understanding of private law Martín can be reached at firstname.lastname@example.org.
[If you would like to be featured in the Contracts Prof Spotlight, or have a recommendation for someone who should be featured, send an email to Meredith R. Miller: mmiller -at- tourolaw.edu]
March 26, 2007
Limerick of the Week
Sometimes you really can sum up a case in five lines:
Normile v. Miller
As if sensing what lay ahead,
The counterofferor said,
You snooze, you lose!"
That's enough to excuse
Her for selling to Segal instead.
March 25, 2007
Contracts as Organizations
Gordon Smith (Wisconsin, Law) and Brayden King (BYU, Sociology) have posted to SSRN a paper entitled Contracts as Organizations. Here's the abstract:
Empirical studies of contracts have become more common over the past decade, but the range of questions addressed by these studies is narrow, inspired primarily by economic theories that focus on the role of contracts in mitigating ex post opportunism. We contend that these economic theories do not adequately explain many commonly observed features of contracts, and we offer four organizational theories to supplement - and in some instances, perhaps, challenge - the dominant economic accounts. The purpose of this Article is threefold: first, to describe how theoretical perspectives on contracting have motivated empirical work on contracts; second, to highlight the dominant role of economic theories in framing empirical work on contracts; and third, to enrich the empirical study of contracts through application of four organizational theories: resource theory, learning theory, identity theory, and institutional theory.
Outside the economics literature, empirical studies of contracts are rare. Even management scholars and sociologists, who generated the four organizational theories just mentioned, largely ignore contracts, both in theoretical and empirical analysis. Nevertheless, we assert that these organizational theories provide new lenses through which to view contracts. While economic theories of contracting focus primarily on one purpose of contracts - mitigating ex post opportunism - the four organizational theories help us understand the multiple purposes of contracts.
[Meredith R. Miller]