Contractual obligation

El presente trabajo se plantea los interrogantes tanto legales como morales a que una teoría del contrato –y de su equivalente deóntico, la promesa– aboca. Encontramos esta doble naturaleza de las obligaciones legales ya desde los tiempos del derecho romano clásico, pero no es sino desde los años 80 que el tema ha experimentado una segunda vida académica. Con el advenimiento de la llamada muerte del contrato, los teóricos de la materia han discutido si el derecho civil no debería reabsorber la teoría general sobre el contrato como disciplina independiente, y reducir su componente moral. Las obras de Charles Fried y de Patrick Atiyah, reivindicando un compromiso moral fuerte en el ejercicio de la teoría y práctica jurídica de la promesa han abierto el camino a la actualidad del debate y presentado una alternativa a la exitosa teoría económica del contrato.The aim of present article is to lay out the usual legal and moral enquiries to which a theory of contract –and its deontic equivalent, promise– leads. We can assess this dual nature of legal obligations even in classic Roman Law times, but it is not until the 80s that the issue has experienced a second academic life. With the sudden rise of scholarship around the so-called death of contract, theorists on the subject have discussed if would not be more convenient to reabsorb the general theory of contract as an independent discipline within tort law, reducing in this exercise its moral component. Charles Fried’s and Patrick Atiyah’s work vindicating a strong moral commitment in legal theory and practice through the underlying idea of promise has left opened the trail to contemporary debate and offered an alternative to the otherwise successful economic theory of contract

The Internal and External Analysis of Concepts

In Abstract Right and the Possibility of a Nondistributive Conception of Contract: Hegel and Contemporary Contract Theory, Peter Benson criticizes the authors presentation of a consent theory of contract, in part, on the ground that it refers only to the empirical facts of the requirements of human needs and fulfillment. Like [Charles] Fried\u27s [account], his conception of the consensual basis of a contract does not preserve the required standpoint of abstraction. On this basis Professor Benson concludes that the author\u27s approach fails to provide an adequate elucidation of a nondistributive conception of contract. By explaining contractual obligation as intelligible ownership based in a relation of wills, independent of the content of those wills, Professor Benson\u27s approach can be viewed as formal or abstract. In contrast, the author\u27s account of a consent theory of contract has been twofold: (a) by understanding contractual obligation as arising when persons manifest an intention to transfer alienable rights, a consent theory of contract (as compared with other available theories) helps us to better understand and sometimes to modify such problematic contract doctrines as the objective interpretation of consent, promissory estoppel, specific performance, and undisclosed agency; (b) this criteria of contractual obligation plays an important social function and is ignored at our peril. Benson does not address the first more explanatory and reformatory aspect of the author\u27s presentation of a consent theory of contract; it is the second of these two aspects of the author\u27s presentation that Benson characterizes as empirical and insufficiently abstract. Professor Benson takes a Hegelian approach that the author states he is not qualified to evaluate from within. In this essay the author assumes arguendo that both Hegelian legal theory and Benson\u27s use of it are sound. However, without questioning either the merits of Benson\u27s analysis or the methodology he employs, the author thinks that elaborating a distinction between internal and external conceptual analyses will permit him to put both Benson\u27s presentation and his criticism of the author\u27s in perspective

Contract as Promise: A Theory of Contractual Obligation

A Review of Contract as Promise: A Theory of Contractual Obligation by Charles Frie

Cain v. Price C/W 69889/70864, 134 Nev. Adv. Op. 26 (April 12, 2018)

The Nevada Supreme Court held that one party’s material breach of contract releases the non-breaching party’s contractual obligation to a third-party beneficiary

Delineating the Implied Covenant and Providing for “Good Faith”

This column considers whether an operating or partnership agreement can delineate the implied contractual obligation, comparing ULLCA and the Delaware Act, and then warns of the dangers of carelessly imposing by contract an express requirement of good faith

Joint and Mutual Wills: A Mischievous Concept

Most wills are executed by one person and may be amended, revised or revoked at any time prior to the testator\u27s death. Occasionally, use is made of wills that are joint in that the instrument is signed by two or more individuals (usually spouses) and contains in one document the testamentary bequests of each testator. Such wills are, in effect, the separate wills of each of the testators and can be revised or revoked by any of the testators as to that person\u27s property. Wills that are both joint and mutual contain a contractual obligation that binds the parties to dispose of their properties that are subject to the contractual obligation according to the terms of the will. The contractual feature becomes binding at the death of the first testator to die; the surviving testator\u27s interest is effectively reduced to a life estate with the remainder interest passing to the beneficiaries named in the will

L’inadempimento e la responsabilità disciplinare del dipendente pubblico: tra obblighi giuridici e vincoli deontologici* = Non-compliance and disciplinary liability of the civil servant: between legal obligations and ethical constraints*. WP C.S.D.L.E. “Massimo D’Antona”.IT – 229/2014

The A. analyses the complex relationship between the notion of contractual obligation and the new idea of “performance” of the public employee, introduced by d. lgs. n. 150/2009. Following the guidelines provided by recent legislation, the essay attempts to clarify content and limits of the contractual obligation required public employee through the analysis of its pathology (i.e. breach of contract). In fact, the exercise of the disciplinary powers of the public employer and its basis in the pathology of the contract bring out several critical profiles as, in particular, the risk of duplication, overlap and interference between different forms of liability charged to the public employee for the same event or behavior. The A. points out the extension of public employee’s contractual obligation due to the introduction by the legislation of ethical and conduct codes. This path of analysis criticizes the rising trend to duplicate the concept of contractual obligation using the notion of "performance". Finally the A. proposes the use of private law categories to simplify rules and management of public employment, recovering the conceptual tools of the labour law

Do Financial Arrangement of the International Monetary Fund Has Impact on the Reduction of Government Spending, Evidence through Political Fiscal Cycles, the Case of Croatia

This paper examines the regulatory role of the IMF on government spending through political fiscal cycles. According to theoretical views, the fiscal policy in the pre-election period reflects an increase in government spending or budget expenditures; in postelection period, it takes a restrictive course by reducing spending. In the presence of a contractual agreement with the IMF, the theory points to limiting and reducing the magnitude of government spending in the pre-election period. According to the research results in Croatia, there is an increase in government spending in the election quarter, and its decrease in the quarter after the election. On the other hand, the contractual arrangements with the IMF show significant reductions in government spending. When a country is under a contractual obligation with the IMF, it reduced the government spending in the pre-election period in relation to the period when it is not under a contractual obligation

Jurisdiction and Applicable Law to Contracts for the Sale of Goods and the Provision of Services including the Carriage of Goods by Sea and other Means of Transport in the European Union

The article analyses the jurisdiction and applicable law to contracts for the sale of godos and the provision of services in the European Union. It particularly focuses on contracts that subsume different categories of contracts, such as the carriage of goods by sea, in a contract for the sale of godos and the provision of services. The European Union law and the interpretation provided by the Court of Justice of the European Union shed light into the place of performance of the contract in order to set jurisdiction for national courts. This is explained through the current legal framework and the case law in order to ascertain where and under what legal regime the claimant may start proceedings for the breach of a contractual obligation or in case of a non-contractual claim