CONTRACTS & COMMERCIAL LAW eJOURNAL

"The Puzzle of the Beneficiary's Bargain" Free Download
Tulane Law Review, Forthcoming

NICOLAS CORNELL, Legal Studies & Business Ethics Department, The Wharton School, University of Pennsylvania
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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 enters a contract with the parents to transport them when the time comes. Is the second contract valid and enforceable, or does it fail for lack of consideration? This specific question — on which courts have split — implicates several important contract law doctrines. Moreover, it highlights a deep tension in our modern understanding of contractual obligation. This Article argues that adequately resolving the puzzle necessitates a general reconsideration of the relationship between rights and liability in contract law. Surprisingly, the best solution requires abandoning the foundational understanding that contract liability arises out of breach of a promisee’s right to performance. The puzzle thus offers a lens through which to examine — and even revise — the central concepts of modern contract law.

"Love in the Time of Cholera: Taking Procurement Reform Forward Amidst Increasing Incidence of Anti-GFR Provisions in Government Tenders" Free Download

SANDEEP VERMA, UIDAI, NITI Aayog
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This short academic brief, prepared for procurement training of senior civil services' members in India, looks at capacity-building of its acquisition workforce amidst increasing incidence of provisions in RFPs and tender notices that are inconsistent with the overall rules and policy frameworks governing public procurement in India. It examines select provisions of some recent RFPs and tender notices issued by various government agencies, and analyses their specific inconsistency with the General Financial Rules, CVC instructions and other important public policies and frameworks.

"Overcoming Hurdles in the Enforceability of Make-Whole Provisions" Free Download
University of Miami Law Review, Forthcoming

BRIAN PATRICK MCBRIDE, Independent
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This comment is an analysis of the enforceability of make-whole provisions in the context of bankruptcy. Make-whole provisions are generally enforceable under state law. Once bankruptcy comes into play, the provisions must withstand a number of challenges. In order to be enforceable in bankruptcy, a make-whole provision must be a valid liquidated damages claim under state law, it must be provided for and triggered under the contractual agreement, and it must not be tantamount to unmatured interest.

"Contemporary Lex Mercatoria in China" Free Download

YING YU, University of Oxford - Wolfson College
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Notwithstanding the negative effects arising from global economic recession, E-commerce transactions in China has increased steadily. Meanwhile, the legal system still lacks specific regulations concerning consumer protection of distance contracts. Nevertheless, the distance consumer market in China is well self-regulated, due to its reliance on a version of the Lex Mercatoria.

This article will discuss the detail of the modern Lex Mercatoria that has developed in China, and draw conclusions on its future. The first aspect is “right of withdrawal? which has been adapted from the European Union’s legal system. Another aspect is “escrow? which Chinese is known as “third-party payment method?. This has been borrowed from the common legal system. The former is a self redress mechanism whereby the consumer can protect whereby the consumer can protect himself during the purchasing process; the latter is a mechanism for security of payment. These two legal concepts do not operate in isolate. On the contrary, they cooperatively break through the difficulty that can occur in practice, when the trader fails to reimburse the consumer. Even though the EU Directives require the trader to return all payments when the right of withdrawal id exercised by the consumer, repayment is frequently withheld or delayed. This approach enrolls escrow to solve the problem, by returning the payment via an escrow holder, which is a credit-neutral third party. The combination of these two concepts makes up the hybrid approach of modern Lex Mercatoria in China. The paper will concludes that increased protection for distance consumer protection in China will be advanced by the use of this Lex Mercatoria and led to further development of relevant legislation.

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About this eJournal

This eJournal distributes working and accepted paper abstracts dealing with contracts and commercial law. This includes papers and articles dealing with all aspects of contract law and all articles of the UCC, including commercial paper and secured transactions.

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Directors

LSN SUBJECT MATTER EJOURNALS

BERNARD S. BLACK
Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Email: rgilson@leland.stanford.edu

Please contact us at the above addresses with your comments, questions or suggestions for LSN-Sub.

Advisory Board

Contracts & Commercial Law eJournal

IAN AYRES
William K. Townsend Professor of Law, Yale University - Yale Law School, Yale University - Yale School of Management

RANDY E. BARNETT
Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center

LISA E. BERNSTEIN
Wilson-Dickinson Professor of Law, University of Chicago Law School

CLAYTON P. GILLETTE
Max E. Greenberg Professor of Contract Law, New York University School of Law

ROBERT A. HILLMAN
Edwin H. Woodruff Professor of Law, Cornell Law School

AVERY W. KATZ
Milton Handler Professor of Law, Columbia University - Law School

RANDAL C. PICKER
Leffmann Professor of Commercial Law; Senior Fellow, The Computation Institute of the University of Chicago and Argonne National Laboratory, University of Chicago - Law School

ALAN SCHWARTZ
Sterling Professor of Law, Yale Law School

MICHAEL J. TREBILCOCK
Professor and Chair in Law and Economics, University of Toronto - Faculty of Law

ELIZABETH WARREN
Leo E. Gottlieb Professor of Law, Harvard Law School