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Boilerplate
Boilerplate--the fine-print terms and conditions that we become subject to when we click \"I agree\" online, rent an apartment, enter an employment contract, sign up for a cellphone carrier, or buy travel tickets--pervades all aspects of our modern lives. On a daily basis, most of us accept boilerplate provisions without realizing that should a dispute arise about a purchased good or service, the nonnegotiable boilerplate terms can deprive us of our right to jury trial and relieve providers of responsibility for harm.Boilerplateis the first comprehensive treatment of the problems posed by the increasing use of these terms, demonstrating how their use has degraded traditional notions of consent, agreement, and contract, and sacrificed core rights whose loss threatens the democratic order.
Margaret Jane Radin examines attempts to justify the use of boilerplate provisions by claiming either that recipients freely consent to them or that economic efficiency demands them, and she finds these justifications wanting. She argues, moreover, that our courts, legislatures, and regulatory agencies have fallen short in their evaluation and oversight of the use of boilerplate clauses. To improve legal evaluation of boilerplate, Radin offers a new analytical framework, one that takes into account the nature of the rights affected, the quality of the recipient's consent, and the extent of the use of these terms. Radin goes on to offer possibilities for new methods of boilerplate evaluation and control, among them the bold suggestion that tort law rather than contract law provides a preferable analysis for some boilerplate schemes. She concludes by discussing positive steps that NGOs, legislators, regulators, courts, and scholars could take to bring about better practices.
eBook
Principle and policy in contract law : competing or complementary concepts?
\"Although presented as being derived from the past, principles in contract law have been subject to constant reformulation, thereby facilitating legal change while simultaneously seeming to preclude it. Principle and policy have been mutually interdependent, propositions not usually being called principles unless they have been perceived to lead to just results in particular cases, and as likely to produce results in future cases that accord with common sense, commercial convenience and sound public policy. The influence of policy has been frequent in contract law, but Stephen Waddams argues that an unmediated appeal to non-legal sources of policy has been constrained by the need to formulate generalised propositions recognised as legal principles. This interrelation of principle and policy has played an important role in enabling an uncodified system to hold a middle course between a rigid formalism on the one hand and an unconstrained instrumentalism on the other\"-- Provided by publisher.
Book
Force Majeure and COVID-19
Force majeure, Covid 19, pandemic, contract provisions, performance, direct causal link, China
Journal Article
Contract law
McKendrick explores the underlying themes and explains the basic rules of English contract law, introducing the current debates about the nature, scope and functions of this law and discussing some of the wider controversies surrounding basic doctrines.
Book
Sanctity of contracts in a secular age : equity, fairness and enrichment
\"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\"-- Provided by publisher.
Book
An employer’s and engineer’s guide to the FIDIC conditions of contract
When all parties involved in the construction process fully understand their roles and are able to anticipate potential points of conflict, disputes and delays will be minimised.
The Employer's and Engineer's Guide to the FIDIC Conditions of Contract sets out the essential administrative requirements of a FIDIC based contract by reference to the FIDIC 1999 Red Book.
The obligations and duties of the Employer and the Engineer are identified and discussed. Potential pitfalls are highlighted and likely consequences pointed out.
The importance of the Employer's role in the preparation of tenders, which fully reflect his requirements and duties and obligations arising in the execution of the works, is emphasised. The key role of the Engineer in the effective administration of contracts after award is examined and commentary provided.
Included in the guide are a number of appendices, including model letters which will be of value to less experienced staff (particularly those whose mother-tongue is not the English language).
Engineers, quantity surveyors and project managers engaged in the contractual administration of international projects using FIDIC forms of contract will find the concise guidance in simple and jargon-free language provided here invaluable.
This, together with the author's earlier book, Contractor's Guide to the FIDIC Conditions of Contract - which describes the duties, rights and responsibilities of the Contractor – represents the totality of supervision, design and execution of construction projects executed under the FIDIC Conditions of Contract.
This book's companion website offers invaluable resources to freely download, adapt and use:
* Model letters for use by the Employer
* Model letters for use by the Contractor
* Sample Interim Payment Certificate
* Model Form for Submissions to the Engineer
* Model Form of Engineer's Order for Varied Works
* Model Form of Daywork/Daily Record Sheets
eBook
Human Capital, Bankruptcy, and Capital Structure
We derive the optimal labor contract for a levered firm in an economy with perfectly competitive capital and labor markets. Employees become entrenched under this contract and so face large human costs of bankruptcy. The firm's optimal capital structure therefore depends on the trade-off between these human costs and the tax benefits of debt. Optimal debt levels consistent with those observed in practice emerge without relying on frictions such as moral hazard or asymmetric information. Consistent with empirical evidence, persistent idiosyncratic differences in leverage across firms also result. In addition, wages should have explanatory power for firm leverage.
Journal Article