Contracts

Edited by Ori Herstein (King's College London, Hebrew University of Jerusalem)
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  1. Hyde Within the Boundaries of Mere Jekyll: Evil in Kant & Stevenson.Virgil W. Brower - 2020 - Polish Journal of Aesthetics 56 (1/2020):63-84.
    This essay experiments with Kant’s writings on rational religion distilled through the Strange Case of Dr Jekyll and Mr Hyde as canonical confrontations with primal problems of evil. It suggests boundaries between Stevenson’s characters and their occupations comparable to the those conflicted in the Kantian university, namely, law, medicine, theology, and philosophy (which makes a short anticipatory appearance in his earlier text on rational religion). With various faculties it investigates diffuse comprehensions—respectively, legal crime, biogenetic transmission, and original sin—of key ethical (...)
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  2. A Quasi-Contract Theory of Political Obligation.Cameron Oren Hunter - 2020 - Law and Philosophy 39 (1):93-118.
    Whether there is a general moral obligation to obey the law, often referred to as ‘political obligation’, is an enduring question in contemporary legal and political philosophy. Theories are continually being formulated, criticized, and reformulated as theorists attempt to settle this issue. However, there yet remains no general consensus as to whether any theory successfully answers this question in either the affirmative or the negative. I propose the legal doctrine of quasi-contract as a candidate for making sense of this persistent (...)
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  3. Capabilities, Political Liberalism and Private Law.Thom Brooks - 2019 - Archiv Fuer Rechts Und Sozialphilosphie 104 (4):556-569.
    This article argues political liberalism can and should be revised to improve its relevance to the private law. This approach is not a rejection of political liberalism, but instead a restatement consistent with the fundamental tenets of Rawls's theory of justice. The first part begins with a brief summary of Rawls's political liberalism. The second part discusses the strategies used to demonstrate the relevance of Rawls's theory to the private law. The third part examines how Rawls's theory can and should (...)
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  4. Moral Market Design.Sam Fox Krauss - 2019 - Kansas Journal of Law and Public Policy 28 (2).
    We often encounter people who we believe are behaving immorally. We routinely try to change minds and often donate to charitable organizations that do the same. Of course, this does not always work. In a liberal, rights-based society, we have to tolerate this. But legal entitlements to act in ways that others find immoral are inefficiently allocated. For example, some meat-eaters value eating meat less than some vegetarians would be willing to pay them to stop. While many have written about (...)
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  5. Contract, Treaty, and Sovereignty.Matthew J. Lister - 2019 - In Claire Oakes Finkelstein & Michael Skerker (eds.), Sovereignty and the New Executive Authority. New York, NY, USA: pp. 283-307.
    It is a common charge that treaties, perhaps especially recent treaties relating to economic activity, provide unreasonable restrictions on the sovereignty of the state parties. While this charge has been made most forcefully by smaller states, it is sometimes raised with justification by larger states or state-like bodies such as the E.U. as well. When a tribunal judging a dispute on an economic treaty tells a state that it may no longer make decisions such as to accept or reject genetically (...)
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  6. Toward an Ontology of Commercial Exchange.Jonathan Vajda, Eric Merrell & Barry Smith - 2019 - In Proceedings of the Joint Ontology Workshops (JOWO), Graz.
    In this paper we propose an Ontology of Commercial Exchange (OCE) based on Basic Formal Ontology. OCE is designed for re-use in the Industrial Ontologies Foundry (IOF) and in other ontologies addressing different aspects of human social behavior involving purchasing, selling, marketing, and so forth. We first evaluate some of the design patterns used in the Financial Industry Business Ontology (FIBO) and Product Types Ontology (PTO). We then propose terms and definitions that we believe will improve the representation of contractual (...)
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  7. The Right to Exit and Skilled Labour Emigration: Ethical Considerations for Compulsory Health Service Programmes.Yusuf Yuksekdag - 2019 - Developing World Bioethics 19 (3):169-179.
    Compulsory (health) service contracts have recently received considerable attention in the normative literature. The service contracts are considered and offered as a permissible and liberal alternative to emigration restrictions if individuals relinquish their right to exit via contract in exchange for the state‐funded tertiary education. To that end, the recent normative literature on the service programmes has particularly focused on discussing the circumstances or conditions in which the contracts should be signed, so that they are morally binding on the part (...)
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  8. Is There a Case for Strict Liability?Larry Alexander - 2018 - Criminal Law and Philosophy 12 (3):531-538.
    In this short paper, I shall answer the title’s question first in the context of criminal law and then in the context of tort law. In that latter section, I shall also mention in passing contractual and other forms of civil liability that are strict, although they will not be my principal focus. My conclusions will be that strict liability is never proper as the basis for retributive punishment; that it is a very crude device for achieving deterrence through nonretributive (...)
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  9. Avant-propos : Contrats de partenariat public privé (2018) par Pascal Mukonde Musulay ISBN 978-2-88931-244-3.Ignace Haaz - 2018 - Globethics African Law Series No. 5.
    Le présent ouvrage fait suite aux deux précédents volumes de l’auteur : (2015) Droit des affaires en Afrique subsaharienne et économie planétaire, et (2016) : Démocratie électorale en Afrique subsaharienne Entre droit, pouvoir et argent, publiés par les Éditions Globethics. Bien que Pascal Mukonde convoque le thème du contrat du point de vue strictement juridique et dans le contexte du droit africain en RD. Congo, sur une ligne de recherche systématique (p.75), nous souhaitons mentionner comme préliminaire, la place de l’éthique (...)
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  10. Does the Emolument Rule Exist for the President?Stephen Kershnar - 2017 - International Journal of Applied Philosophy 31 (1):31-43.
    In this article, I argue that with regard to the President, the Emoluments Clause is not law. I argue for this on the basis of two premises. First, if something is a law, then it has a legal remedy. Second, EC does not have a legal remedy. This premise rests on one or more of the following assumptions: EC does not apply to the President; if EC were to apply to the President, it does not provide a remedy; or, if (...)
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  11. The Morals of Moral Hazard: A Contracts Approach.McCaffrey Matthew - 2017 - Business Ethics: A European Review 26 (1):47-62.
    Although moral hazard is a well-known economic concept, there is a long-standing controversy over its moral implications. The language economists use to describe moral hazard is often value-laden, and implies moral judgments about the persons or actions of economic agents. This in turn leads some to question whether it is actually a scientific concept, or simply a convenient tool for criticizing certain public policies. At present, there is no consensus about the moral meaning of moral hazard, or about whether the (...)
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  12. Contracts and Vows.Gary Chartier - 2016 - Oxford Journal of Law and Religion 5 (3):482-509.
    Examines analogies between contracts and vows and uses analytical tools from contract law to highlight the limits of religious vows.
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  13. A Complainant-Oriented Approach to Unconscionability and Contract Law.Nicolas Cornell - 2016 - University of Pennsylvania Law Review 164:1131-1175.
    This Article draws attention to a conceptual point that has been overlooked in recent discussions about the theoretical foundations of contract law. I argue that, rather than enforcing the obligations of promises, contract law concerns complaints against promissory wrongs. This conceptual distinction is easy to miss. If one assumes that complaints arise whenever an obligation has been violated, then the distinction does not seem meaningful. I show, however, that an obligation can be breached without giving rise to a valid complaint. (...)
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  14. The Puzzle of the Beneficiary's Bargain.Nicolas Cornell - 2015 - Tulane Law Review 90:75-128.
    This Article describes a jurisprudential puzzle—what I call the puzzle of the beneficiary’s bargain—and contends that adequately resolving this puzzle will require significant revisions to basic premises of contract law. The puzzle arises when one party enters into two contracts requiring the same performance, and the promisee of the second contract is the third-party beneficiary of the first. For example, a taxi driver contracts with a woman to transport her parents from the airport next week, and then the driver separately (...)
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  15. Law and Culture: A Theory of Comparative Variation in Bona Fide Purchase Rules.Giuseppe Dari-Mattiacci & Carmine Guerriero - 2015 - Oxford Journal of Legal Studies 35 (3):543-574.
    A key question in comparative law is why different legal systems provide different legal solutions for the same problem. To answer this question, we use novel comparative evidence on how the conflict between the dispossessed original owner and the bona fide purchaser of a stolen good is resolved in different countries. This is the most primitive manifestation of a fundamental legal choice: the balance between the protection of the owner’s property rights and the enhancement of the buyer’s reliance on contracts. (...)
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  16. Contract as Promise: A Theory of Contractual Obligation.Charles Fried - 2015 - Oxford University Press USA.
    Contract as Promise is a study of the philosophical foundations of contract law in which Professor Fried effectively answers some of the most common assumptions about contract law and strongly proposes a moral basis for it while defending the classical theory of contract. This book provides two purposes regarding the complex legal institution of the contract. The first is the theoretical purpose to demonstrate how contract law can be traced to and is determined by a small number of basic moral (...)
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  17. Authority, Oaths, Contracts, and Uncertainty in War.Seth Lazar - 2015 - Thought: A Journal of Philosophy 4 (1):52-58.
    Soldiers sign contracts to obey lawful orders; they also swear oaths to this end. The enlistment contract for the Armed Forces of the United States combines both elements: -/- '9a. My enlistment is more than an employment agreement. As a member of the Armed Forces of the United States, I will be: (1) Required to obey all lawful orders and perform all assigned duties … (4) Required upon order to serve in combat or other hazardous situations.' -/- We standardly think (...)
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  18. Free Speech Rights at Work: Resolving the Differences Between Practice and Liberal Principle.Paul Wragg - 2015 - Industrial Law Journal 44 (1):1-28.
    ACAS reports increasing disciplinary action against employees over expression that employers dislike. Given the prominence of social media in contemporary life, this is a significant current legal issue yet one which has attracted relatively little academic comment. This article examines the compatibility of unfair dismissal doctrine in this context with traditional liberal principle. Arguably, doctrine provides only flimsy protection. Although the common law recognises the importance of individual autonomy generally when determining rights claims, this well-established liberal value appears to have (...)
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  19. Legal Agreements and the Capacities of Agents.Andrei Buckareff - 2014 - In Law and the Philosophy of Action. Leiden, Netherlands: Brill. pp. 195-219.
    Most work at the intersection of law and the philosophy of action focuses on criminal responsibility. Unfortunately, this focus has been at the expense of reflecting on how the philosophy of action might help illuminate our understanding of issues in civil law. In this essay, focusing on Anglo-American jurisprudence, we examine the conditions under which a party to a legal agreement is deemed to have the capacity required to be bound by that agreement. We refer to this condition as the (...)
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  20. A Promissory Theory of the Duty to Tip.Stephen Kershnar - 2014 - Business and Society Review 119 (2):247-276.
    In this article, I argued that in contexts in which tipping is customary, there is a moral duty to tip or to explicitly tell the server that you will not be tipping. The evidence for this rests on anecdotes about people's mental states, and customers and server's intuitions about duties that would arise were a customer unable to tip his server. The promise is a speech act that is implicit in ordering food. The speech act must be matched by the (...)
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  21. Review of Katy Barnett, Accounting for Profit for Breach of Contract. [REVIEW]Andrew Botterell - 2013 - 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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  22. Private Law and Justice.Sandy Steel - 2013 - 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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  23. On the Topic of the Divergence Between Legal and Moral Obligations in Common Law.Tareq Al-Tawil - 2012 - Canadian Journal of Law and Jurisprudence 25 (1):5-37.
    If common law is to run parallel to the morality of promissory obligation, it must require the breaching seller to keep his promise, not simply to pay off the buyer. However, in the event of promise-breaking, common law orders the defendant to compensate the claimant for the loss that flows from the breach of the duty to perform. The following questions then arise: why does English law not order the defendant to do the very thing that the substantive duty requires (...)
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  24. Problems of Liability for Breach of a Preliminary Agreement.Dangutė Ambrasienė & Indrė Kryžiūtė - 2012 - Jurisprudencija: Mokslo darbu žurnalas 19 (2):561-583.
    Due to its specificity, the legal institute of preliminary agreement poses a number of questions. This pre-contractual agreement is not yet a contract. Therefore, the form and scope of legal protection will not be the same as that guaranteed to contracting parties. However, the European legal systems would claim that the relationships between the parties during pre-contractual negotiations have to be regulated and protected by the law. The first part of this article deals with the legal nature of pre-contractual liability: (...)
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  25. Corrective Justice.Ernest Joseph Weinrib - 2012 - Oxford University Press.
    Correlativity and personality -- The disintegration of duty -- Remedies -- Gain-based damages -- Punishment and disgorgement as contract remedies -- Unjust enrichment -- Incontrovertible benefit in Jewish law -- Poverty and property in Kant's system of rights -- Can law survive legal education?
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  26. Does Restitution for Wrongdoing Give Effect to Primary or Secondary Rights?Tareq Al-Twail - 2011 - Canadian Journal of Law and Jurisprudence 24 (2):243-275.
    There are two main and quite distinct contractual interests or rights constitutive of a contract. First, the interest in securing the contracted-for performance; secondly, the interest in ensuring, if that performance is not completely secured or not secured at all, that one is not left worse off as a result thereof. The claimant can bring a claim to give effect to his performance interest and/or can bring a claim to give effect to his compensation interest. It can be argued, however, (...)
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  27. A Theory of Contract Law: Empirical Insights and Moral Psychology.Peter A. Alces - 2011 - 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 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, argues that (...)
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  28. Collective Action and Contract Rights.Louis-Philippe Hodgson - 2011 - 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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  29. On the Applications of Game Theory in Contract Law.Wojciech Załuski - 2011 - In Jerzy Stelmach & Wojciech Załuski (eds.), Game Theory and the Law. Copernicus Center Press.
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  30. Contracts.Brian Bix - 2010 - 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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  31. Contractual Performance, Corrective Justice, and Disgorgement for Breach of Contract.Andrew Botterell - 2010 - 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 the (...)
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  32. Contract as Promise-Casi 30 Años Después.Martín Hevia - 2010 - Isonomía. Revista de Teoría y Filosofía Del Derecho 32:195-208.
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  33. The Ethics of Consent: Theory and Practice.Franklin G. Miller & Alan Wertheimer (eds.) - 2010 - 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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  34. General Provisions, Obligations of the Seller, and Remedies for Breach of Contract by the Seller.Ronald A. Brand, Harry Flechtner & Franco Ferrari - 2009 - In Ronald A. Brand, Harry Flechtner & Franco Ferrari (eds.), The Draft Uncitral Digest and Beyond: Cases, Analysis and Unresolved Issues in the U.N. Sales Convention. Sellier de Gruyter.
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  35. Obligations of the Buyer and Remedies for the Buyer’s Breach of Contract.Ronald A. Brand, Harry Flechtner & Franco Ferrari - 2009 - In Ronald A. Brand, Harry Flechtner & Franco Ferrari (eds.), The Draft Uncitral Digest and Beyond: Cases, Analysis and Unresolved Issues in the U.N. Sales Convention. Sellier de Gruyter.
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  36. Modular Argumentation for Modelling Legal Doctrines in Common Law of Contract.Phan Minh Dung & Phan Minh Thang - 2009 - 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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  37. Cfr & Social Justice.Martijn W. Hesselink - 2009 - Sellier de Gruyter.
    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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  38. Gifts: A Study in Comparative Law.Richard Hyland - 2009 - Oup Usa.
    Gifts: A Study in Comparative Law is the first broad-based study of the law governing the giving and revocation of gifts ever attempted. First, gift-giving is everywhere governed by social and customary norms before it encounters the law. Second, the giving of gifts takes place largely outside of the marketplace. As a result of these two characteristics, the law of gifts provides an optimal lens through which to examine how different legal systems confront social practice. The law of gifts is (...)
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  39. Introduction : Goals Rights and Obligations.Andrew Robertson - 2009 - In Andrew Robertson & Hang Wu Tang (eds.), The Goals of Private Law. Hart.
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  40. Non-Negotiated Terms.Reiner Schulze - 2009 - In Common Frame of Reference and Existing Ec Contract Law. Sellier de Gruyter.
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  41. Remedies for Breach of Contract in European Private Law – Principles of European Contract Law, Acquis Communautaire and Common Und Frame of Reference.Reiner Schulze - 2009 - In New Features in Contract Law. Sellier de Gruyter.
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  42. Comparative Law and Common Frame of Reference.Reiner Schulze - 2009 - In Common Frame of Reference and Existing Ec Contract Law. Sellier de Gruyter.
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  43. New Features in Contract Law.Reiner Schulze - 2009 - Sellier de Gruyter.
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  44. Could Breach of Contract Be Immoral?Seana Valentine Shiffrin - 2009 - Michigan Law Review 107 (8):1551-1568.
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  45. Remedies for Breach of Contract in the DCFR.Gerhard Wagner - 2009 - In The Common Frame of Reference: A View From Law & Economics. Sellier de Gruyter.
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  46. Contract Rights and Remedies, and the Divergence Between Law and Morality.Brian H. Bix - 2008 - 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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  47. Contract Rights and Remedies, and the Divergence Between Law and Morality.B. I. X. H. - 2008 - 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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  48. Objectivity and Subjectivity in Contract Law: A Copernican Response to Professor Shiffrin.Jeffrey Lipshaw - 2008 - 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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  49. Damages for Breach of Contract: Compensation, Restitution and Vindication.David Pearce & Roger Halson - 2008 - 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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  50. Philosophy of Private Law.William Lucy - 2007 - 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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