Table of Contents

Understanding the Law of Contract in Myanmar

Andrew Burrows, University of Oxford - Faculty of Law

The Challenges of Private Law

Hanoch Dagan, Tel Aviv University - Buchmann Faculty of Law

The Role of State in Ukrainian Business: Violent Bespredel and Profitable Partner

Tatiana Kyselova, National University Kyiv - Mohyla Academy

Privity in e-Contract in Nigeria

Olubukola Adeyemi Olugasa, Babcock University - School of Law and Security Studies
Veronica Ekundayo, Babcock University - School of Law and Security Studies
Omobamidele O. Olufemi, Babcock University - School of Law and Security Studies
Omolola Ogbolumani, Yaba College of Technology

Convergence in Public and Private Law Doctrines - The Case of Public Contracts

Janet M. McLean, University of Auckland - Faculty of Law

Contract as Procedural Justice

Aditi Bagchi, Fordham University School of Law

Traditional Surrogacy Contracts, Partial Enforcement, and the Challenge for Family Law

Mark Strasser, Capital University - Law School


"Understanding the Law of Contract in Myanmar" Free Download

ANDREW BURROWS, University of Oxford - Faculty of Law

What is the law of contract in Myanmar/Burma and how far does it differ from modern English contract law? These are difficult and intriguing questions. Any assumption that the general law of contract in Myanmar can simply be found and understood by reading the Myanmar Contract Act 1872 must be dispelled. The burning question is, what is Myanmar contract law where the 1872 Act does not apply or is out of date and there is no other statute in play? How far do underpinning principles of ‘justice, equity and good conscience’ (Burmese Law Acts 1898, s 13(3)) assist? Certainly an answer is urgently needed if those seeking to enter into contracts in Myanmar are to feel confident that the domestic contract law of Myanmar is fit for purpose.

"The Challenges of Private Law" Free Download

HANOCH DAGAN, Tel Aviv University - Buchmann Faculty of Law

Properly understood, private law establishes ideal frameworks for respectful interactions between self-determining individuals, which are indispensable for a society where all recognize one another as genuinely free and equal agents. Only private law can form and sustain the variety of frameworks necessary for our ability to lead our chosen conception of life. And only private law can cast them as interactions between free and equal individuals who respect one another as the persons they actually are, thus vindicating the demands of relational justice. Hence, the two animating principles of a liberal (that is, autonomy-enhancing) private law — structural pluralism and interpersonal accommodation.

Building on this account of private law, this Essay offers a preliminary survey of three important challenges to private law in a liberal society. One challenge, prompted by the injunction of structural pluralism, is that of identifying missing frameworks, that is: detecting spheres of life in which private law fails to supply a sufficiently diverse set of alternative property institutions or contract types and is thus insufficiently autonomy-enhancing. Another challenge emerges whenever the constitutive good(s) of the social practice that the parties engage in are in tension with the injunction of interpersonal accommodation. These cases require private law to either allow these goods to override the injunction of interpersonal accommodation or else discard or reform the pertinent legal (and social) practice. Finally, because the intrinsic value of private law does not require treating private law and public law as mutually exclusive categories, private law can consider utilizing public law (vertical) mechanisms to help secure its horizontal mission and must be careful not to undermine the liberal state’s commitments to distributive justice, democratic citizenship, and aggregate welfare. I thus conclude with a consideration of the ways in which private law can coordinate with public law, namely: either supplement its doctrinal framework with a regulatory infrastructure or adapt it in order to address pertinent public commitments while still meeting the demands of relational justice.

"The Role of State in Ukrainian Business: Violent Bespredel and Profitable Partner" Free Download
1 Kyiv-Mohyla Law and Politics Journal 83 (2015)

TATIANA KYSELOVA, National University Kyiv - Mohyla Academy

This article analyses the role played by the Ukrainian state in the everyday business under Yanukovych regime in 2007-2011. Relying on the empirical findings of a five-year case study conducted in Eastern Ukraine, this article confirms the image of the Ukrainian state as a “grabbing hand? or bespredel — an unrestricted and violent power. The contractual relations of the researched firms and the state actors were fraught with illegal practices such as kickbacks from suppliers and the need to systematically violate the law on state procurement; pervasive Soviet-style personal relations; the risk of experiencing violent administrative pressure including criminal prosecution; and deficiencies in the enforcement of contracts. Notwithstanding these risks, the researched businesses revealed no absolute moral prohibition against joining the “grabbing hand? of the state to exploit public resources and advance their own private gains.

"Privity in e-Contract in Nigeria" Free Download

OLUBUKOLA ADEYEMI OLUGASA, Babcock University - School of Law and Security Studies
VERONICA EKUNDAYO, Babcock University - School of Law and Security Studies
OMOBAMIDELE O. OLUFEMI, Babcock University - School of Law and Security Studies
OMOLOLA OGBOLUMANI, Yaba College of Technology

The doctrine of privity of contract excludes a third party to a contract from claiming a right under a contract between specific parties that have voluntarily entered into the contract. It renders a third party a meddlesome interloper. That third party can neither enforce the contract nor be made liable in the contract. But there are exceptions to this general rule of the doctrine. These exceptions include the statuses of third party insurance, agency, trustee, and guarantor/surety. With the advent of e-contract it appears this doctrine can no longer hold sway across jurisdictions. By the nature of e-contract several parties may be involved in the formation of a contract between two parties. E-contracts are formed by the parties to it through the internet platform. Usually that platform is made up of different actors. These actors include the parties to the contract, Internet Service Providers (ISPs), Internet Content Providers (ICPs), manufacturers of hardware and software through which the parties connect and sometimes their agents as well. These actors hold the reins of the fundamental aspect of contract which is communication between the direct traditional parties to the contract. Any mistake by failure, negligence, or accident on the part of these actors could result in vitiating the contract or end up in breach of contract or fragrant frustration of the contract. Whereas a number of jurisdictions have one way or the other taken care of this innovation induced gap in their e-contract Nigeria is yet to close up the gap. The purpose of the paper is to re-appraise the doctrine and consider its status in contemporary contract, particularly e-contract, and suggest reforms in law of contract in that regard in Nigeria. The conduct of business transactions across the world is witnessing a new paradigm shift, an aspect of which this paper seeks to discuss and suggest a workable legal regime towards ensuring the purpose of law of contract by adopting the ‘liberal’ approach that recognizes the relationship between law and technology for the Nigerian jurisdiction.

"Convergence in Public and Private Law Doctrines - The Case of Public Contracts" Free Download

JANET M. MCLEAN, University of Auckland - Faculty of Law

Is it possible for public and private law doctrines to converge in response to contemporary modes of mixed public-private governance? Such an approach has certain attractions. It side-steps difficult and often circular a priori assessments of whether a transaction or body is sufficiently “public? or “commercial?, and it sometimes provides a space in which the countervailing threats of public corruption and private coercion can be weighed. Three examples of modern convergence are identified in relation to public contracts: the law of public tendering; controls on contractual discretion; and the concept of non-delegable duties in tort law which impacts on contracting out.

"Contract as Procedural Justice" Free Download
7 Jurisprudence 2016 (DOI 10.1080/20403313.2015.1079430), Forthcoming

ADITI BAGCHI, Fordham University School of Law

The premise of contract law is that the redistribution of entitlements that results from contract is justified by the process of agreement. But theories of contract differ importantly on how and when voluntary exchange justifies a resorting of entitlements. Pure theories regard the principles of contract as essentially derivative from some aspect of the principle of autonomy; contracting parties’ intent to assume legal obligation is in principle necessary and sufficient for its enforcement. Perfect theories do not view contract as self-justifying but regard the process of agreement as reliable evidence that contracts are welfare-improving. This article demonstrates the limitations of pure and perfect views. It favors instead imperfect theories of contract, which would have judges self-consciously pursue the normative ends of contract law as they apply context-sensitive rules.

"Traditional Surrogacy Contracts, Partial Enforcement, and the Challenge for Family Law" 
Journal of Health Care Law & Policy, Vol. 18, pp. 85-113, 2015

MARK STRASSER, Capital University - Law School

Commercial surrogacy remains controversial, although courts over the past few decades seemed to have reached a compromise making gestational but not traditional (genetic) surrogacy agreements enforceable. Recently, a few courts have enforced traditional surrogacy agreements in part or in whole. This article traces the developing jurisprudence in this area, notes some of the counterintuitive implications of some of these latter decisions, and explains how some of these undesirable effects might be avoided.


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Contracts & Commercial Law eJournal

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

Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center

Wilson-Dickinson Professor of Law, University of Chicago Law School

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

Edwin H. Woodruff Professor of Law, Cornell Law School

Milton Handler Professor of Law, Columbia University - Law School

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

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Professor and Chair in Law and Economics, University of Toronto - Faculty of Law

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