Table of Contents

European Private Law: Up in the Air?

Joasia Luzak, University of Amsterdam - Centre for the Study of European Contract Law (CSECL), University of Amsterdam - Faculty of Law

The Transfer of Risk – A Comparative Study of Indian Law, South African Law and the United Nations Convention on the International Sale of Goods

Dharmita Prasad, Independent

A Chilling Experience: An Analysis of the Legal and Ethical Issues Surrounding Egg Freezing, and a Contractual Solution

Alicia J. Paller, University of Minnesota - Twin Cities - Minnesota Law Review

Contractual Severance and the Cornerstone of the Parties’ Intentions

Sandra Annette Booysen, National University of Singapore (NUS) - Faculty of Law, National University of Singapore (NUS) - Centre for Banking and Finance Law (CBFL), National University of Singapore (NUS) - Singapore Journal of Legal Studies, Banking and Finance Law Review


CONTRACTS & COMMERCIAL LAW eJOURNAL

"European Private Law: Up in the Air?" Free Download
Forthcoming in M. Bobek & J. Prassl (eds.) 'Air Passenger Rights. Ten Years On', Oxford: Hart Publishing.
Amsterdam Law School Research Paper No. 2015-03
Centre for the Study of European Contract Law Working Paper Series No. 2015-03

JOASIA LUZAK, University of Amsterdam - Centre for the Study of European Contract Law (CSECL), University of Amsterdam - Faculty of Law
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This paper compares the existing rights granted to consumers when they purchase services in the EU, whether in a shop or within a distance selling scheme, with the provisions of Regulation 261/2004. While the works on the new European rules on air passengers’ rights are still ongoing it is important to examine what protection measures the air passengers are currently missing that European consumers may already be enjoying while concluding contracts other than for air transport services. Additionally, I will also discuss whether certain air passengers’ rights in Europe and the methods of providing these rights could serve as a model for the further development of European consumer protection measures. The assumption underlying this comparison is that air transport services are just one of many services that European consumers purchase. Conceivably, consumers should enjoy similar, if not the same, protection regardless of the type of service they are interested in. Special justifications, e.g., of an economic nature, could, however, justify the introduction of divergent rules with respect to air transport services. Therefore, where my research indicates such differences in the protection levels of air passengers and consumers concluding contracts other than for air transport services, I will consider whether these differences could be justified due to the need to protect interests of one of the contractual parties or due to the internal market’s objectives.

"The Transfer of Risk – A Comparative Study of Indian Law, South African Law and the United Nations Convention on the International Sale of Goods" Free Download

DHARMITA PRASAD, Independent
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Transfer of risk determines who bears the risk on the goods if it is lost or damaged. Hence the consequences of this concept hold an important place where two parties are contracting. The consequences, the timing, and the process of transfer of risk possess many interesting questions and makes it an interesting study.

The principle has been dealt in different ways in different legal systems. We live in an era where the unification of International law is being sought. This goal can only be achieved when we have a clear understanding of different legal systems and come to a draft which comprises of the best of all and thus acceptable to all Nations.

This paper will however only concentrate on understanding the legal regimes of South African Law which has been influenced by Roman-Dutch Law and Indian Law which is based on Common Law. The paper will also compare the above mentioned laws to the United Nations Convention on the International Sale of Goods. A lot has been said about CISG being a failure and countries who are a party to this convention expressly opting out of it. The final analysis will try to determine whether South Africa and India not being a party to the Convention is in loss.

"A Chilling Experience: An Analysis of the Legal and Ethical Issues Surrounding Egg Freezing, and a Contractual Solution" 
Minnesota Law Review, Vol. 99, No. 4, 2015

ALICIA J. PALLER, University of Minnesota - Twin Cities - Minnesota Law Review
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If you Google “egg freezing,? you will find numerous newspaper and magazine articles discussing this new reproductive technology. You will also encounter countless clinics currently helping women extract and freeze their eggs. You might find an occasional warning about the potential risks associated with egg freezing, as the media is buzzing with questions about this new, ethically uncertain technology. If you conduct a legal search, however, you will not find answers to these questions.

In October 2012, the American Society for Reproductive Medicine lifted the “experimental? designation from egg freezing procedures. Women can now freeze their eggs in their twenties, thirties, or forties, and conceive children with those eggs in their forties, fifties, or sixties. While the potential benefits of “freezing one’s fertility? have been widely discussed, the physical, psychological, and financial risks associated with egg freezing have not been appropriately explored. Clinics and patients remain vulnerable as women freeze their eggs within a medical regime that has far outpaced legal guidelines. Few regulations relate to assisted reproductive technology, and none pertain specifically to egg freezing. As egg freezing becomes more popular, or even routine, it is important that issues including informed consent, what happens to abandoned or pre-deceased eggs, and what constitutes appropriate damages for breaching an egg freezing contract are fully analyzed and discussed.

This article jump-starts that discussion, suggesting that while egg freezing should remain an option, it raises complex issues about reproductive rights that are unlikely to be resolved without legislative action. Consequently, this Note recommends a concrete, balanced solution — legislatively mandated standard form contracts — which will provide both patients and fertility clinics with uniformity, predictability, and security. This new structure will help prevent legal and ethical controversies from arising, while preserving reproductive freedom as egg freezing continues to grow in demand.

"Contractual Severance and the Cornerstone of the Parties’ Intentions" 
Lloyd's Maritime and Commercial Law Quarterly 537, 2014

SANDRA ANNETTE BOOYSEN, National University of Singapore (NUS) - Faculty of Law, National University of Singapore (NUS) - Centre for Banking and Finance Law (CBFL), National University of Singapore (NUS) - Singapore Journal of Legal Studies, Banking and Finance Law Review
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The ability to sever a defective phrase or term from a contract may be vital to its enforcement. I argue in this paper that the test for the availability of severance is twofold: it must be consistent with the parties’ intentions at the time of contracting as well as prevailing public policy. While the role of public policy in the severance enquiry is well-established, the role of the parties’ intentions is less recognised and this, therefore, is the focus of my paper. When deciding severance questions, the courts have commonly referred to other principles that govern its availability: 1. Severance must not alter the nature of the contract; 2. The courts will not rewrite a contract - also known as the blue pencil test; 3. Severance must not destroy the whole or main consideration for a contract.

With reference to English and Australian case law, I explore the operation of contractual severance, defend its compatibility with fundamental contractual concepts, demonstrate the important role of the parties’ intentions, and explain the above severance rules as a proxy for determining the parties’ intentions.

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