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Private Law

Edited by Ori Herstein (King's College London, Hebrew University of Jerusalem)
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Contracts
  1. Yehuda Adar, Why Unify Contract and Tort Remedies? A Reply to Professor Dagan (in Hebrew).
    The remedies section in the Israeli draft civil code attempts to create a unified law of remedies for the breach of any civil obligation, including originating in tort law and contract law. In his article, "The Risks of Codification: On Over-Coherence and Multiplicity of Remedies", Professor Dagan forcefully criticizes this attempt. The present article demonstrates that the two main criticisms raised by Dagan - against the unification of remedies and against the attempt to fortify the remedial response to breach of (...)
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  2. Peter A. Alces (2011). A Theory of Contract Law: Empirical Insights and Moral Psychology. OUP Usa.
    In the past few decades, scholars have offered positive, normative, and most recently, interpretive theories of contract law. These theories have proceeded primarily (indeed, necessarily) from deontological and consequentialist premises. In A Theory of Contract Law: Empirical Understandings and Moral Psychology, Professor Peter A. Alces confronts the leading interpretive theories of contract and demonstrates their interpretive doctrinal failures. Professor Alces presents the leading canonical cases that inform the extant theories of Contract law in both their historical and transactional contexts and, (...)
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  3. W. H. Beveridge (1908). Book Review:Roman Private Law. R. W. Leage. [REVIEW] Ethics 18 (4):525-.
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  4. Larry Kenneth Biesenthal (1978). The Limits of Contract. Dissertation, York University (Canada)
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  5. Brian Bix (2010). Contracts. In Franklin G. Miller & Alan Wertheimer (eds.), The Ethics of Consent: Theory and Practice. Oxford University Press
    Consent, in terms of voluntary choice, is - or, at least, appears to be or purports to be - at the essence of contract law. Contract law, both in principle and in practice, is about allowing parties to enter arrangements on terms they choose - each party imposing obligations on itself in return for obligations another party has placed upon itself. This freedom of contract- an ideal by which there are obligations to the extent, but only to the extent, freely (...)
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  6. Brian Bix (2008). Contract Rights and Remedies, and the Divergence Between Law and Morality. Ratio Juris 21 (2):194-211.
    There is an ongoing debate in the philosophical and jurisprudential literature regarding the nature and possibility of Contract theory. On one hand are those who argue (or assume) that there is, or should be, a single, general, universal theory of Contract Law, one applicable to all jurisdictions and all times. On the other hand are those who assert that Contract theory should be localized to particular times and places, perhaps even with different theories for different types of agreements. This article (...)
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  7. Andrew Botterell (2013). Review of Katy Barnett, Accounting for Profit for Breach of Contract. [REVIEW] Canadian Business Law Journal 54:99-106.
    A review of Katy Barnett, Accounting for Profit for Breach of Contract (Hart Publishing, 2012).
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  8. Andrew Botterell (2010). Contractual Performance, Corrective Justice, and Disgorgement for Breach of Contract. Legal Theory 16 (3):135-160.
    This paper is about the remedy of disgorgement for breach of contract. In it I argue for two conclusions. I first argue that, prima facie at least, disgorgement damages for breach of contract present something of a puzzle. But second, I argue that if we pay close attention to the notion of contractual performance, this puzzle can be resolved in a way that is consistent with principles of corrective justice. In particular, I suggest that even if a contract gives (...)
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  9. Richard Bronaugh (1983). A Secret Paradox of the Common Law. Law and Philosophy 2 (2):193 - 232.
    This essay recounts a fascinating if complicated piece of Anglo-American debate. My aim is to reach a conclusion about the importance of the notion of changing one's normative position as part of the act of giving sufficient consideration for a legal contract. In several journals and textbooks between 1894 and 1918 the major contract scholars of the time, e.g., Langdell, Anson, Pollock, Williston, Ames, and Corbin, discussed a special example which was thought to reveal a paradox in the common law (...)
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  10. R. Brownsword (2004). The Enforceability of Promises in European Contract Law. Edited by James Gordley. The European Legacy 9:381-381.
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  11. Jeffrey Burkhardt (1986). Agribusiness Ethics: Specifying the Terms of the Contract. [REVIEW] Journal of Business Ethics 5 (4):333 - 345.
    Agricultural production in the western world in our time is primarily agribusiness. As such, a business ethics approach can be extended to agricultural production. Given the nature of the agricultural production system, however, not only are general principles for business ethics applicable, but more specific obligations need to be generated. A social contract approach such as Donaldson's, with modifications, serves to provide both the general principles for the ethical practice of agribusiness, as well as more specific obligations for agents in (...)
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  12. David Cabrelli & Rebecca Zahn, The Elective and Automatic Theories of Termination in the Common Law of the Contract of Employment: Conundrum Resolved?
    If a party to an employment contract commits a repudiatory dismissal or resignation, it has long been unclear whether the other party has the option either to terminate or affirm the contract (the elective theory) or whether the former's breach operates to bring the contract of employment to an end (the automatic theory). The recent decision of the Supreme Court in Société Générale (London Branch) v Geys has finally resolved this question. By a majority, the Supreme Court held that the (...)
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  13. Olha O. Cherednychenko, Subordinating Contract Law to Fundamental Rights: Towards a Major Breakthrough or Towards Walking in Circles?
    The increasing use of fundamental rights arguments to protect weaker parties in contractual disputes in many European legal systems leads us to ask to what extent this will occur in the future rather than whether fundamental rights will have an impact on the relationships between private parties under contract law. One of the fundamental issues to be resolved in this respect is which body of law substantially determines the outcome of a contractual dispute between private parties - fundamental rights or (...)
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  14. Olha O. Cherednychenko, Subordinating Contract Law to Fundamental Rights: Towards a Major Breakthrough or Towards Walking in Circles?
    The increasing use of fundamental rights arguments to protect weaker parties in contractual disputes in many European legal systems leads us to ask to what extent this will occur in the future rather than whether fundamental rights will have an impact on the relationships between private parties under contract law. One of the fundamental issues to be resolved in this respect is which body of law substantially determines the outcome of a contractual dispute between private parties - fundamental rights or (...)
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  15. Witting Christian (2000). Justifying Liability to Third Parties for Negligent Misstatements. Oxford Journal of Legal Studies 20 (4).
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  16. Jules L. Coleman (ed.) (1994). Private Law Theory. Garland Pub..
    The Tragedy of the Commons The population prohlem has no technical solution; it requires a fundamental extension in morality. ...
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  17. Terence Daintith & Gunther Teubner (eds.) (1986). Contract and Organisation: Legal Analysis in the Light of Economic and Social Theory. W. De Gruyter.
    Sociological Jurisprudence and Legal Economics: Risks and Rewards Terence Daintith gunther teubner Firenze Introduction Contract and Organisation - these ...
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  18. Stephen Thomas Dare (1992). Private Law and Public Virtue: A Philosophical Analysis of Contractual Obligation. Dissertation, University of Alberta (Canada)
    According to some approaches to contract law, the criteria by which the existence and extent of contractual obligation is to be determined reside within the act of contracting itself. Such approaches are internalist and content-independent. Other approaches claim that contractual obligation arises only where the content of a contract is consistent with a principle of contractual obligation which stands independently of and prior to particular contracts. Such approaches are content-dependent and externalist. The principal theories of contract are either internalist and (...)
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  19. Phan Minh Dung & Phan Minh Thang (2009). Modular Argumentation for Modelling Legal Doctrines in Common Law of Contract. Artificial Intelligence and Law 17 (3):167-182.
    To create a programming environment for contract dispute resolution, we propose an extension of assumption-based argumentation into modular assumption-based argumentation in which different modules of argumentation representing different knowledge bases for reasoning about beliefs and facts and for representation and reasoning with the legal doctrines could be built and assembled together. A distinct novel feature of modular argumentation in compare with other modular logic-based systems like Prolog is that it allows references to different semantics in the same module at the (...)
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  20. David Ellerman (1992). Property and Contract in Economics: The Case for Economic Democracy. Blackwell.
    From a pre-publication review by the late Austrian economist, Don Lavoie, of George Mason University: -/- "The book's radical re-interpretation of property and contract is, I think, among the most powerful critiques of mainstream economics ever developed. It undermines the neoclassical way of thinking about property by articulating a theory of inalienable rights, and constructs out of this perspective a "labor theory of property" which is as different from Marx's labor theory of (...)
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  21. R. G. Frey & Christopher W. Morris (eds.) (1991). Liability and Responsibility: Essays in Law and Morals. Cambridge University Press.
    This collection of contemporary essays by a group of well-known philosophers and legal theorists covers various topics in the philosophy of law, focusing on issues concerning liability in contract, tort, and criminal law. The book is divided into four sections. The first provides a conceptual overview of the issues at stake in a philosophical discussion of liability and responsibility. The second, third, and fourth sections present, in turn, more detailed explorations of the roles of notions of liability and responsibility in (...)
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  22. Margaret Gilbert (1999). Reconsidering the “Actual Contract” Theory of Political Obligation. Ethics 109 (2):236-260.
    Do people have obligations by virtue of the fact that a given country is their country? Actual contract theory says they do because they have agreed to act in certain ways. Contemporary philosophers standardly object in terms of the 'no agreement' objection and the 'not morally binding' objection. I argue that the 'not morally binding' objection is not conclusive. As for the 'no agreement' objection, though actual contract theory succumbs, a closely related plural subject theory of political obligation does not. (...)
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  23. Arnold Gysin (1960). The Origins of the Contract. Ratio 3 (1):44.
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  24. B. I. X. H. (2008). Contract Rights and Remedies, and the Divergence Between Law and Morality. Ratio Juris 21 (2):194-211.
    Abstract. There is an ongoing debate in the philosophical and jurisprudential literature regarding the nature and possibility of Contract theory. On one hand, are those who argue (or assume) that there is, or should be, a single, general, universal theory of Contract Law, one applicable to all jurisdictions and all times. On the other hand, are those who assert that Contract theory should be localized to particular times and places, perhaps even with different theories for different types of agreements. This (...)
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  25. Martijn W. Hesselink, CFR & Social Justice: A Short Study for the European Parliament on the Values Underlying the Draft Common Frame of Reference for European Private Law - What Roles for Fairness and Social Justice?
    The draft Common Frame of Reference is likely to play a prominent role in the further development of European contract law. Therefore, with a view to its acceptability it is crucial to assess the draft from the point of view of social justice.The DCFR has all the characteristics of a typical European compromise. Ideological and esthetical purists will certainly be disappointed. This is not necessarily something to be worried about. A common frame of reference is not drafted, in the first (...)
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  26. Martín Hevia (2010). Contract as Promise-Casi 30 Años Después. Isonomía. Revista de Teoría y Filosofía Del Derecho 32:195-208.
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  27. Louis-Philippe Hodgson (2011). Collective Action and Contract Rights. Legal Theory 17 (3):209-26.
    The possibility of collective action is essential to human freedom. Yet, as Rousseau famously argued, individuals acting together allow themselves to depend on one another’s choices and thereby jeopardize one another’s freedom. These two facts jointly constitute what I call the normative problem of collective action. I argue that solving this problem is harder than it looks. It cannot be done merely in terms of moral obligations; indeed, it ultimately requires putting in place a full-fledged system of contract rights. The (...)
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  28. Angela R. Holder (1991). What is a Contract of Adhesion? IRB: Ethics & Human Research 13 (4):10.
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  29. Stig Jørgensen (1978). Values in Law: Ideas, Principles and Rules. Juristforbundet.
    Ideology and science.--Idealism and realism in jurisprudence.--Symmetry and justice.--Grotius's Doctrine of contract.--Legal positivism and natural law.--Natural law today.--Argumentation and decision.
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  30. Dori Kimel (2003). From Promise to Contract Towards a Liberal Theory of Contract.
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  31. Dori Kimel (2001). Neutrality, Autonomy, and Freedom of Contract. Oxford Journal of Legal Studies 21 (3):473-494.
    The article examines the popular notion that liberalism, or liberal theory of contract, is committed to a particularly rigid conception of the freedom of contract. The article argues that this notion is mistaken, and seeks to identify its roots in certain misconceptions of modern liberalism and its implications, and in a certain misunderstanding concerning the nature of contract. Neutral political concern, the value of personal autonomy, and finally the belief that contracts are identical to promises in terms of their significance (...)
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  32. N. Kinsella (1978). A Libertarian Theory Of Contract: Title Transfer, Binding Promises, Inalienability. Journal of Libertarian Studies 2:11-37.
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  33. Jody S. Kraus, From Langdell to Law and Economics: Two Conceptions of Stare Decisis in Contract Law and Theory.
    In his classic monograph, The Death of Contract, Grant Gilmore argued that Christopher Columbus Langdell, Oliver Wendell Holmes, and Samuel Williston trumped up the legal credentials for their classical bargain theory of contract law. Gilmore's analysis has been subjected to extensive criticism, but its specific, sustained, and fundamental charge that the bargain theory was based on a fraudulent misrepresentation of precedential authority has never been questioned. In this Essay, I argue that Gilmore's case against the classical theorists rests on the (...)
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  34. Roy Kreitner, Fault at the Contract-Tort Interface.
    The formative period in the history of contract and tort (in the second half of the nineteenth century) may be characterized by the cleavage of contract and tort around the concept of fault: tort modernized by moving from strict liability to a regime of “no liability without fault,” while contract moved toward strict liability. The opposing attitudes toward fault are puzzling at first glance. Nineteenth-century scholars of private law offered explanations for the opposition, reasoning that alternative ideas about fault account (...)
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  35. N. Stephan K_insella (2003). A Libertarian Theory or Contract: Title Transfer, Binding Promises, and Inalienability. Journal of Libertarian Studies 17 (2):11-37.
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  36. Jeffrey Lipshaw (2008). Objectivity and Subjectivity in Contract Law: A Copernican Response to Professor Shiffrin. Canadian Journal of Law and Jurisprudence 21 (2):399-410.
    This is a response to Seana Shiffrin’s recent and important contribution to the continuing debate whether there is a universal moral or economic truth at the heart of contract law. While she adopts an unduly simplistic view of the divergence of morality in promise-keeping and contract law, her most significant advance toward a general theory of promise and contract is her identification of the critical moment at which the interposition of the public in a private matter occurs or is contemplated. (...)
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  37. William Lucy (2007). Philosophy of Private Law. Oxford University Press.
    In what, if any sense are our torts and our breaches of contract 'wrongs'? These two branches of private law have for centuries provided philosophers and jurists with grounds for puzzlement and this book provides both an outline of, and intervention in, contemporary jurisprudential debates about the nature and foundation of liability in private law.
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  38. Franklin G. Miller & Alan Wertheimer (eds.) (2010). The Ethics of Consent: Theory and Practice. Oxford University Press.
    This book assembles the contributions of a distinguished group of scholars concerning the ethics of consent in theory and practice.
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  39. P. G. Monateri & Alessandro Somma, The Fascist Theory of Contract: A Comparative and Historical Inquiry Into the Darker Side of Contract Law.
    This paper represents an attempt to discuss and re-assess the scholarly debate on Private Law in Fascist time. Moving from a newer comparison with National Socialism, the Authors look at the strategic devices used to justify a precise concept of law and a selected body of rules. In this perspective Roman Law could be view as a powerful means of legitimation, an historical tool apt to grant a specific lecture of contemporary times. What is under judgment is the construction of (...)
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  40. Liam Murphy, Contract and Promise.
    A contract theory is an attempt both to make normative sense of contract law as an institutional type and to come up with criteria for the evaluation of the law of any particular place. There is no precise rule telling us how far the prescriptions of a theory can deviate from actually existing contract law and still be a theory of contract — rather than a political proposal to replace contract law with something else. But we can say roughly that (...)
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  41. David Pearce & Roger Halson (2008). Damages for Breach of Contract: Compensation, Restitution and Vindication. Oxford Journal of Legal Studies 28 (1):73-98.
    In this article we examine the role which vindication plays in contract damages. Vindication describes the making good of a right by the award of an adequate remedy. We argue that, while the primary purpose of compensation is to provide an indemnity for loss, an award of compensatory damages will nevertheless generally vindicate the right to performance of the contract. We go on to consider a distinct measure of damages, vindicatory damages. These, we argue, are neither compensatory nor restitutionary, neither (...)
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  42. Anders J. Persson (2006). The Contract of Employment - Ethical Dimensions. Journal of Business Ethics 66 (4):407 - 415.
    In this paper, the nature of the contract of employment is explored from an ethical point of view. It is argued that certain normative arguments should be taken into account in order to justify such a contract. Furthermore, an argument is developed against the claim that (a) the individual’s freedom of decision and (b) the practice of institutional arrangements are sufficient to justify a contract of employment. The dimensional analysis offered shows that further conditions are needed: (a) must be elaborated (...)
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  43. Philip Pettit (2006). Can Contract Theory Ground Morality? In James Lawrence Dreier (ed.), Contemporary Debates in Moral Theory. Blackwell Pub. 6--77.
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  44. Michael J. Phillips (1994). Should We Let Employees Contract Away Their Rights Against Arbitrary Discharge? Journal of Business Ethics 13 (4):233 - 242.
    This article argues that the moral right to be discharged only for good cause and like rights can be contracted away by employees in appropriate circumstances. It maintains that the rights in question are not inalienable, and that there is nothing irrational about an employee''s wishing to deal them away. It also maintains that inequalities in bargaining power between employers and employees are insufficiently pervasive to justify a flat ban on the alienation of these rights. For a waiver of such (...)
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  45. Michael G. Pratt, Contract: Not Promise.
    In order to form a contract at least one of the parties to the bargain must give an undertaking or commitment of the appropriate kind to the other; that is, she must perform a commissive speech act of the right kind. It is widely assumed that the speech act in question is a promise. Indeed it is standard textbook fare that a contract is a promise (or an exchange of promises) that the law will enforce. This assumption underlies the venerable (...)
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  46. Andrew Robertson (2009). Introduction : Goals Rights and Obligations. In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart Pub.
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  47. F. C. Sharp (1934). The Ethics of Breach of Contract. International Journal of Ethics 45 (1):27-53.
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  48. Seana Valentine Shiffrin (2009). Could Breach of Contract Be Immoral? Michigan Law Review 107 (8):1551-1568.
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  49. Sandy Steel (2013). Private Law and Justice. Oxford Journal of Legal Studies 33 (3):607-628.
    This article is in two parts. The first part critically examines the foundations of Weinrib’s theory of corrective justice. It casts doubt upon his claim that private law faces incoherence if it is not entirely based upon corrective justice and questions the normative appeal of that view. The second part makes a variety of critical observations in relation to Weinrib’s corrective-justice-based treatment of particular areas of private law.
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  50. Catherine Valcke, On Comparing French and English Contract Law: Insights From Social Contract Theory.
    I here argue that the same thought structure that underlies French contract law (contractual interpretation and contractual mistake) also underlies French social contract theory (Rousseau), whereas a different thought structure underlies both English contract law and English social contract theory (Hobbes and Locke). More specifically, I claim that, on the French side, facts and norms tend to be neatly delineated from one another and clear prevalence is given to the norms, whereas, on the English side, facts and norms tend to (...)
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