This chapter discusses contract law in relation to comparative law. It first considers some of the reasons why contract law has become the classical subject matter of comparative law before explaining the practical relevance of the rules on general contract law to comparative studies. It then examines the similarities and differences between civil law and common law, along with the enforceability of agreements on the basis of the parties’ intention to create legal relations, the ‘doctrine of consideration’, and formal requirements of the contract. The chapter goes on to describe the two processes of ascertaining the content of a contract, namely: interpretation and supplementation. It also looks at illegal, immoral, and unfair contracts as well as the provisions on mistake, claims for performance of contractual obligations, termination of contracts, and claims for damages in case of non-performance or if a party does not perform its obligations properly.
‘Classical’ contract law was built on a substantive premise about contract law and two premises about legal method. The substantive premise was voluntaristic: the business of contract law is to enforce the will or choice of the parties. The first methodological premise was positivistic: the law is found, implicitly or explicitly, in the decisions of common law judges. The second methodological premise was conceptualistic: the law should be stated in general formulas which can be tested by their coherence. Finally, ‘classical’ contract law reflected an attitude about how best to steer a course — as every legal system must — between strict rules and equitable considerations. Since the early twentieth century, classical contract law has been breaking down. Allegiance to its premises has weakened as has the preference for rigor. At the same time, scholars have found classical law to be inconsistent even in its own terms. Nevertheless, much of it has remained in place faute de mieux while contemporary jurists have tried to see what is really at stake in particular legal problems. This article describes their work.
Many aspects of contract law, developed before the age of computer technology, require re-evaluation in the twenty-first century. The following matters will be considered: the postal acceptance rule in the digital age; e-mail messages, in particular whether a name or initial typed in the message constitutes a 'signature' for all purposes, and whether the sender's name in the address does so; clicking on a box on a computer screen as manifestation of assent, and whether it satisfies express statutory or contractual requirements of 'signature'; sealed instruments in the computer age; use of a website as manifestation of assent ('browse-wrap' so-called); and, more generally, problems of standard form contracts, consumer protection, and unfair terms, exacerbated (I would argue), though not originated, by computer technology. Illustrations are drawn both from English and from Canadian law.
This article deals with legal corporate behavior and corporate structures. It discusses the activity within and between business units. It explains studies on corporate behavior in a threefold order—the first order deals with the gap between formal legal contracts and informal corporate covenants; the second order deals with norms that govern alternative contractual norms; and the third order exclusively deals with the economic aspects of the study. The legal-economic approach tries to identify the gap between actual behavior and ideal behavior. This article demonstrates that investors are claimed to be non-interventionist and only the investor's direct involvement necessitates direct monitoring. It examines new arenas of contract practice such as Internet shopping and e-commerce more generally.
This chapter examines the theoretical and empirical validity of the “contractarian” theory of corporate governance Beginning with an overview of the contractarian theory and its conceptualization of the relationship between managers and shareholders of a public company, it explains how the theoretical assumptions of the contractarian theory have turned out to be invalid and how the empirical predictions of the theory have not been borne out. The process by which “corporate contracts” develop do not fit the neoclassical model of atomistic competition. As a result, the customization and innovation that the contractarian theory predicts do not occur—either at the IPO stage or at the “midstream” stage when companies are publicly traded.
Transnational Commercial Surrogacy: Contracts, Conflicts, and the Prospects of International Legal Regulation
Cyra Akila Choudhury
With the emergence of assisted reproductive technologies, particularly in vitro fertilization, gestational surrogacy in which an woman can be hired to gestate the child of commissioning parents has grown into a multimillion dollar industry. While many countries prohibit surrogacy, others permit and some even allow women to charge for the service of gestation on a commercial basis. This article addresses the regulation of transnational surrogacy and the related legal conflicts that arise in cross-border agreements particularly in commercial contracts It starts with a brief exploration of the surrogacy industry and growth. It then goes on to describe and analyze some of the legal frameworks that affect surrogacy contracts. The article proceeds to discuss some of the most prominent cross-border controversies to highlight that these conflicts tend to arise from a lack of international or transnational regulation on parentage and citizenship. Finally, the article explores the proposals for international regulation and the prospects of solving some of the more difficult legal problems that have arisen from transnational surrogacy.
What Do Contracts Histories Tell Us About Capitalism?: From Origins and Distribution, to the Body and the Nation
This chapter reads contracts histories as discussions about capitalism. What do histories tell us about capitalism? What kind of concerns do they betray about it? It presents a case study of Britain, the first capitalist nation, in the late-eighteenth and nineteenth centuries. It argues that histories of contracts of this era, viewed as a whole, address capitalism within the established modes of political-economic debate: origins—when it emerged, a question intertwined with determining what elements were fundamental to capitalism; and distribution—questions of economic, social, and cultural equality in capitalism. The chapter separates and simplifies these themes to introduce existing work and highlight thick points of controversy and research. The second part moves beyond these concerns, and offers two other perspectives on contracts and capitalism: embodiment and nationalism.