ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Saturday, November 20, 2010

Today in History -- November 21

Aa 1272 – One of the great lawgivers in English history, King Edward I (left), ascends to the English throne.

1579 – Merchant Thomas Gresham, the man whose work with Queen Elizabeth put the pound sterling on a solid footing and who created the Royal Exchange, dies at age 60. "Gresham’s Law"—that bad money drives out good if the exchange rate is set by law—is named for him.

1694 – François-Marie Arouet is born at Paris. Under the pen name "Voltaire" he will go on to prove that you can earn a great reputation and a very good living if you can make clever sneers at others without actually accomplishing much yourself.

1787 – Future shipping tycoon Samuel Cunard is born at Halifax, Nova Scotia, the son of loyalist emigrants from the United States.

1789 – North Carolina ratifies the United States Constitution and is admitted as the 12th U.S. state.

1861 –Judah Philip Benjamin is appointed Secretary of War to the Confederate States of America. Even more important than his Confederate service will be his Treatise on the Law of Sale of Personal Property, which is still in print today in its seventh edition.

1877 – Thomas Edison announces that he has created a machine that can record and play back sounds. It will come to be known as the phonograph, and will play an important role in the classic agency law case of Kidd v. Thomas A. Edison, Inc.

1899 – Lawyer and U.S. Vice President Garrett Augustus Hobart of New Jersey dies suddenly in Washington, D.C. This will open the way for Theodore Roosevelt to become President McKinley’s running mate in 1900.

1905 – The journal Annals of Physics publishes a paper, Does the Inertia of a Body Depend Upon Its Energy Content?, by an unknown Swiss patent clerk. The publication, which posits the relationship between mass an energy, will eventually help Albert Einstein get a teaching job.  Sound familiar?

1920 –On "Bloody Sunday" in Dublin, 31 people are killed in clashes between the Irish Republican Army and British troops. Final score, England 17, Ireland 14.

1922 – Eighty-seven year-old Rebecca Latimer Felton of Georgia becomes the first female U.S. Senator. Her appointment to fill a vacant slot lasts only one day.


November 20, 2010 in Today in History | Permalink | Comments (0) | TrackBack (0)

Friday, November 19, 2010

Today in History -- November 20

869 – St. Edmund the Martyr, King of East Anglia, is shot with arrows and beheaded after he is captured by Danes and refuses to submit to a pagan overlord.

1194 –Emperor Henry VI completes his conquest of the Kingdom of Sicily by taking Palermo. Henry promptly has the 8-year-old Sicilian king William III blinded and castrated.

Aa 1695 – Portuguese authorities execute Zumbi dos Palmares (right), last leader of the independent colony of escaped slaves known as Quilombo dos Palmares (1605-1695) in what is now Alagoras, Brazil.

1789 – New Jersey becomes the first state to ratify the U.S. Bill of Rights.

1820 – Two thousand miles from the west coast of South America, the 238-ton Nantucket whaler Essex is attacked and sunk by a large sperm whale.  Herman Melville, reading later of the event, decides that this might make a good story.

1866 – Future lawyer, judge, and baseball commissioner Kenesaw Mountain Landis is born at Millville, Ohio. He got his name because that was the battle where his father, a Union Army physician, lost a leg.

1910 – In San Antonio, Texas, Mexican exiles led by Francisco Madero issue the Plan de San Luis Potosi, calling for the overthrow of dictatorial President Porfirio Díaz, effectively igniting the Mexican Revolution.

1984 – The SETI Institute is incorporated to search for intelligent extraterrestrial life. You’d think they’d have tried to find some one earth, first.

1985 – Microsoft Corporation issues Windows 1.0. It will be a success.


November 19, 2010 in Today in History | Permalink | Comments (0) | TrackBack (0)

Unconscionability and independence in letters of credit

1908RandallCountyCourthouseCanyonTexas907TJnsn The "independence principle" is the rule -- traditionally very important in letter of credit law -- that a letter of credit is independent of the contract that gives rise to it, and thus ordinary contract defenses are unavailing to defeat the holder.  The rule fosters certainty but also (inevitably) leads to tough cases, and thus courts are not particularly friendly to it. 

In a new paper, Unconscionability as an Exception to the Independence Principle: A Study of Singaporean Caselaw, M. Hasan Aijaz looks at how courts in Singapore are snipping away at the rule.  Here's the abstract:

This paper studies the development, existing status, and suggests a course of development for the independence principle in Singapore. The independence principle is one of the defining characteristics of letter of credit law and ensures that the letter of credit remains true to its origin as a cash replacement. Inroads on the independence principle have been made in most jurisdictions to varying extent through the exception of fraud from the principle such that fraud in the underlying contract may work to vitiate the efficacy of a call on the letter of credit. The independence principle is in tension with the fraud principle in most jurisdictions with the scope of the exception often being misapplied or constantly changing. In Singapore and other jurisdictions the independence principle has further been eroded with the introduction of a second exception, unconscionability, which operates to vitiate the efficacy of a call on the letter of credit in various nebulously defined scenarios. This paper tracks how this exception arose and discusses doctrinal methods to maintain the vitality of the independence principle without overturning significant caselaw.


November 19, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, November 18, 2010

Today in History -- November 19

1908RandallCountyCourthouseCanyonTexas907TJnsn 1095 – The Council of Clermont convenes. The Council will hears Bl. Pope Urban II call on western Christians (left) to go to the aid of the Byzantine Empire, which in the previous 20 years has seen the whole of Greek-speaking, Christian Anatolia overrun by Muslim Turks.

1493 – Christopher Columbus goes ashore on an island he first saw the day before. The inhabitants call it "Borinquen" but he will rename it "San Juan Bautista."  Later still, it will be called "Puerto Rico."

1816 – The Royal University of Warsaw (now Warsaw University) is established. Its first two schools are Law and Medicine.

1863 – President Abraham Lincoln delivers the Gettysburg Address. In keeping with the traditional civility of American public discourse, the Chicago Times observes, "The cheek of every American must tingle with shame as he reads the silly, flat and dishwatery utterances of the man who has to be pointed out to intelligent foreigners as the President of the United States."

1916 – Samuel Goldfish and brothers Edgar and Archibald Selwyn establish Goldwyn Pictures Corp. Sam likes the new name so much he takes it as his own.

1985 – Pennzoil wins a $10.53 billion judgment against Texaco for tortious interference with contractual relations. At issue was the alleged oral agreement Pennzoil had to buy Getty Oil, which Getty dropped after getting a higher bid from Texaco.


1990 – Members of Milli Vanilli (above) are stripped of their Grammy Awards because they didn’t actually sing on their Girl You Know It's True album. Meanwhile, Walter Duranty still has his Pulitzer Prize.

1998 – Christie’s New York sells Vincent van Gogh's Portrait de l'artiste sans barbe at auction for $71.5 million. It’s the twelfth most-expensive painting of all time on an inflation-adjusted basis.


November 18, 2010 in Today in History | Permalink | Comments (0) | TrackBack (0)

Hatzis on surrogacy contracts in Greece

1908RandallCountyCourthouseCanyonTexas907TJnsn Gestational surrogacy contracts raise a host of legal issues, from formation to public policy to remedies, which is presumably why In re Baby M,,109 N.J. 396, 537 A.2d 1227 (1988), is such a contracts course staple.

Aristides Hatzis (Athens Law/Philosophy) has been writing about these contracts for several years, including his influential 2003 paper, 'Just the Oven': A Law & Economics Approach to Gestational Surrogacy Contracts.  He's back back on the subject with a critical (and semi-empirical) look at how regulation of surrogacy contracts is working out in Greece.

His conclusion?  Not so well.  Large numbers of these transactions are apparently going on without going through the required regulatory process.  And the process itself doesn't seem to be doing what its proponents hoped it would do.  The paper, The Regulation of Surrogate Motherhood in Greece, is here.

(For those who don't know why Baby M is such a good contracts case, check out Carol Sanger's (Baby) M is for the Many Things: Why I Start with Baby M, which convinced me to include it in my course.)


November 18, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Fear of flying

1908RandallCountyCourthouseCanyonTexas907TJnsn Having just got back from a whirlwind family airline trip to Syracuse and New York City (LaGuardia), this piece from the Atlantic's Megan McArdle really about sums up my feelings.

These days, if it takes less than twelve hours to drive there, I don't fly.  And if it takes more than twelve hours to drive there, I usually don't go. . . .


November 18, 2010 in Commentary | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 17, 2010

Today in History -- November 18

326 – On the site of what is believed to be the tomb of St. Peter in Rome, a basilica ordered by Constantine I and dedicated to the apostle is consecrated.

1302 – Lawyer Benedetto Gaetani (a/k/a Pope Boniface VIII) issues the Papal bull Unam sanctam (One Faith), which stresses the unity of the Church, the Church’s role in eternal salvation, and the position of the pope as supreme head of the Church.

1307 – Swiss bowman William Tell splits an apple on his son’s head with a crossbow bolt.

1477 – William Caxton’s Dictes or Sayengis of the Philosophres, become the first book printed on a printing press in England.  More would follow, most not nearly as improving.

1686 – After practicing the surgery on several handy prisoners to make sure he could do it correctly surgeon Charles François Felix successfully removes an abscess from the anus of French King Louis XIV.  It’s good to be the king.

1803 – Haitian rebels under the command of Jean-Jacques Dessalines decisively defeat the French at the Battle of Vertires, effectively securing independence for Haiti.

1883 – American and Canadian railroads unite to institute five standard continental time zones in an effort to avoid dealing with thousands of different local times.

1928 – Disney Cartoons releases the animated short Steamboat Willie, the first fully synchronized sound cartoon and the birth of Mickey Mouse.

1993 – The U.S. House of Representatives ratifies the North American Free Trade Agreement.


November 17, 2010 in Today in History | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 16, 2010

Today in History -- November 17

1558 – Queen Mary I of England dies and is succeeded by her half-sister Elizabeth, with very unfortunate results for Catholics.

1777 – The Articles of Confederation are submitted to the thirteen united American colonies for ratification.

1800 – The United States Congress holds its first session in Washington, D.C. No one’s life, liberty, or property will ever be safe again.

1908RandallCountyCourthouseCanyonTexas907TJnsn 1869 – The Suez Canal opens, linking the Mediterranean and Red Seas, and ultimately giving rise to the group of great commercial impracticability cases known as the Suez Canal Cases, including Ocean Tramp Tankers Corp. v. V/O Sovfracht (The Eugenia), [1964] 2 Q.B. 226.

1871 – Lawyer George Wood Wingate and publisher William Conant Church obtain a New York charter for a group that will later become the National Rifle Association. Its first president is former General Ambrose Burnside..

1947 – Under the leadership of Ronald Reagan, the largest labor union in the acting field, the Screen Actors Guild, votes to require officers to swear they are not members of the Communist Party. This vote is regarded by many as more evil than anything Stalin ever did.

1947 – Scientists at Bell Laboratories, trying to figure out why an amplifier isn’t working as it should, make observations that will ultimately lead to the development of the transistor.

2004 – Kmart Corp. announces that it is buying Sears, Roebuck and Co. for $11 billion and naming the newly merged company Sears Holdings Corporation.


November 16, 2010 in Today in History | Permalink | Comments (0) | TrackBack (0)

Monday, November 15, 2010

Today in History -- November 16

1908RandallCountyCourthouseCanyonTexas907TJnsn 534 – The second and final revision of the Codex Iustinianus Repetitae Praelectionis—the part of Emperor Justinian’s massive Corpus Iuris Civilis which includes the constitutiones of the Roman Emperors—is published at Constantinople.

1532 – Francisco Pizarro and his men capture Inca Emperor Atahualpa. In what Karl Llewellyn would call a classic "welsher" situation, the Spanish agree not to kill him if he fills a 22' x 17' x 8' once with gold and twice with silver and gives it all to them.  He does, but is killed anyway.

1776 – The Republic of the Seven United Netherlands becomes the first state to recognize the independence of the United States.

1821 – Missouri merchant William Becknell arrives in Santa Fe, New Mexico, with wagons of trade goods. His route will become the most important trade route in the Southwest, the Santa Fe Trail.

1907 – Oklahoma joins the Union as the 46th U.S. state.

1914 – The Federal Reserve Bank of the United States officially opens. Its mission is to ensure the financial stability of the nation, a task at which it will fail dismally and repeatedly.

1973 – President Richard Nixon signs the Trans-Alaska Pipeline Authorization Act, which authorizes a consortium led by Atlantic Richfield, British Petroleum, and Humble Oil to construct the Alaska Pipeline.


November 15, 2010 | Permalink | TrackBack (0)

Unconscionability in risky transactions

Olha Cherednychenko (Faculty of Law, VU University-Amsterdam) has just posted Conceptualising Unconscionability in the Context of Risky Financial Transactions: How to Converge Public and Private Law Approaches? It’s part of a new book, Unconscionability in European Private Financial Transactions: Protecting the Vulnerable. Here’s the abstract:

While financial services are essential for the everyday life of EU citizens and for the EU economy at large, some of them entail very high risks which may particularly affect the vulnerable in financial transactions. Thus, for example, the provision of investment services by the bank may lead to huge financial losses beyond the client's ability to pay. Similarly, the provision of a business loan to one family member on the condition that another family member stands as a surety for the whole debt may result in financial ruin for the latter. The information asymmetry and huge risks involved in some financial transactions give rise to the question of how and to what extent the vulnerable must be protected (against themselves). At present one can trace several contract-related methods of protecting the vulnerable against unconscionable financial transactions, some of which even going beyond private law. On the one hand, the influence of public law can be seen in the recourse to fundamental rights with a view to rebalancing contract law (e.g. the Bürgschaft case in Germany) and in the adoption of the financial supervision legislation in some areas containing extensive duties of care on the part of financial service providers. On the other hand, contract law itself has developed concepts which protect the vulnerable against unconscionable financial transactions. This contribution critically analyses these methods and a possible interplay between them. It is argued that recourse to fundamental rights cannot effectively resolve the problem of contractual unfairness. What is needed is a further development of contract law concepts of unconscionability taking into account the contract-related rules in the financial supervision laws and, possibly, even the integration of the two. Special attention in this respect must be paid to the role of the vulnerable at the (pre-) contractual stage.


November 15, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Judges as profit-maximizing cartel defectors

Cartels that aren't supported by legal sanctions find it very difficult to keep members from defecting.  Even when a cartel is made up of the smartest, noblest, wisest, most public-spirited people in the world --U.S. federal judges -- some members will break their promises when it's to their advantage to do so, as Josh Wright points out over at Truth on the Market.


November 15, 2010 | Permalink | TrackBack (0)

Aquinas and liberalism

Aa The Lumen Christi Institute and the University of Chicago's Department of Political Science will be hosting the 2010 Yves Simon Memorial Lecture this Wednesday, November 17.  The speaker is Paul Sigmund, an authority on political theory and Latin American politics.  Here's the description of the lecture:

Given a renewed interest in the political thought of Thomas Aquinas, many 20th century political philosophers (e.g. Yves Simon, Jacques Maritain, and Alasdair MacIntyre) have brought Aquinas’ thought to bear on questions within contemporary liberal democracies. This lecture will consider this Thomistic renewal and its influence in both European and Latin American Christian Democratic parties. 
The event is at 4:30 pm in the Swift Hall Commons Room, 1025 East 58th St., Chicago.  A buffet dinner will follow.

November 15, 2010 in Miscellaneous, Religion | Permalink | TrackBack (0)

Sunday, November 14, 2010

Today in History -- November 15

1515 – Thomas Wolsey, Archbishop of York, is invested as a Cardinal. As Chancellor to Henry VIII, he will later set maximum retail prices for meat and use the Star Chamber to prosecute persons who sold meat at "unjust" prices.

1777 – After more than a year of work and debate, the Continental Congress approves the Articles of Confederation.

1859 – Land developer Evangelos Zappas—who left home at 13 and received no formal education—sponsors the first modern revival of the Olympic Games in Athens.

1908RandallCountyCourthouseCanyonTexas907TJnsn 1923 – To combat inflation, Germany introduces a new temporary currency, the Rentenmark, to replace the deutsche mark. The conversion price is 1 trillion deutsche marks (left) to one Rentenmark, and four Rentenmarks to the dollar.

1926 – A consortium of Radio Corporation of America, General Electric, and Westinghouse launches the National Broadcasting Company, with an initial 24 radio stations.

1949 – From the "isn’t it ironic" file, Nathuram Godse and Narayan Apte are hanged at Ambala Jail for assassinating apostle of nonviolence.Mahatma Gandhi.

1959 – Four members of the Herbert Clutter Family are murdered at their farm outside Holcomb, Kansas. But it's an ill wind that blows no one good.  Their deaths is will make Truman Capote rich.

1969 – Dave Thomas opens the first Wendy's fast-food restaurant in Columbus, Ohio. He makes the burgers square so that the corners sticking out make the patties look bigger than those of his competitors.


November 14, 2010 in Today in History | Permalink | Comments (0) | TrackBack (0)

Weekly Top Ten

SSRN Following are the Top 10 most-downloaded papers from the SSRN Journal of Contract and Commercial Law for the 60 days ending November 14, 2010. (Last week's ranking in parentheses.)

1 (1) Two Faces: Demystifying the Mortgage Electronic Registration System's Land Title Theory, Christopher Lewis Peterson (Utah).

2 (2) Good Faith and Contract Interpretation: A Law and Economics Perspective, Simone M. Sepe (Arizona).

3 (3) The Need for Insurance Policy Transparency, Daniel Schwarcz (Minnesota).

4 (4) Choice of Forum Provisions in Intra-Corporate Litigation: Mandatory and Elective Approaches, Joseph Grundfest (Stanford).

5 (6) Misbehavioral Economics: The Case Against Behavioral Antitrust, Joshua D. Wright (Geo. Mason) & Judd E. Stone (Int’l Center for Law & Economics).

6 (5) Taking Punitive Damages Seriously: Why a French Court Did Not Recognize An American Decision Awarding Punitive Damages and Why it Should Have, François-Xavier Licari (Metz).

7 (7) A Moral Rights Theory of the Private Law, Andrew S. Gold (DePaul).

8 (9) Should Consumers Be Permitted to Waive Products Liability? Product Safety, Private Contracts, and Adverse Selection, Albert H. Choi (Virginia) & Kathryn E. Spier (Harvard).

9 (8) Contractors and the Ultimate Sacrifice, Steven L. Schooner & Collin D. Swan (Geo. Washington).

10 (10) Vertical Restraints, Dealers with Power, and Antitrust Policy, Herbert J. Hovenkamp (Iowa).


November 14, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

The customer is not right

Aa This is a tough time for small businesses pretty much everywhere.  But a Boston food mart that just went out of business isn't blaming the economy.  It's blaming its customers.  Turns out they weren't as sophisticated and loyal as the owners thought they'd be:

"Don Otto’s Market wants to say we had few customers that understood customer loyalty and its importance to our business,” a message on its Web site reads, later adding: “If you came in only for baguettes, the occasional piece of cheese, the occasional dinner . . . you can not tell yourself you were a supporter of our market.”

A particular gripe is customers who insisted on buying exactly what they wanted, instead of what the store happened to sell.  One of the owners remarked:

“People don’t understand their purchases make a difference, and that by buying something that wasn’t exactly what you want, it gets you closer to what you want. It’s an investment." 

You've got to feel a little sorry for the owners, but this isn't an attitude you see very often in successful businesses.



November 14, 2010 in In the News | Permalink | Comments (0) | TrackBack (0)

Contracting under uncertainty, Chinese real estate edition

Gregory Stein (Tennessee) recently posted Commercial Leasing in China: An Overview. We missed it when it first came out because it's not classified as a contracts article, but it's got some interesting stuff for contracts profs. Here's the abstract:

In an effort to understand how and why investors and other professionals are willing to participate in China’s unsettled commercial leasing market, I recently interviewed Chinese and Western experts in the real estate field, including lawyers, judges, developers, bankers, government officials, and academics. This Article summarizes my findings about China’s commercial leasing market. China’s new property law provides some insight into how China’s real estate market functions, but a full picture requires an understanding of how these professionals have operated in a legally uncertain environment, both before and after the new law became effective.


November 14, 2010 in Recent Scholarship | Permalink | Comments (1) | TrackBack (0)