Let’s continue the discussion regarding rules of fault in contract law. This series is from a law review article written by Professor George M. Cohen, who first notes that: “The economic justification starts from the same premise as the traditionalist justification – that courts should enforce agreements according to the parties’ mutual intentions. [Thus,] the [...]
Let’s continue with the discussion of fault and breach in contract law. We are starting to see that the law treat different kinds of contracts differently. Meaning that, with a “relational contract,” being one in which the duties and obligations extend over time, the law imposes higher standards than in a “one-shot” contract. Professors Oren [...]
Journalist and attorney Lloyd Carter questions whether the benefits of subsidized water outweigh the social costs. The undisputable fact is that the west side of Fresno County is one of the poorest regions in all of America. Does current water policy help or does it simply compound the misery? The Cost for West Side Agriculture [...]
Water supplies for West Side agriculture have been major news items in the past few years. Many residents, including this writer, are proud of our agricultural heritage and bounty, and have questioned decisions that threaten water supplies for agriculture. Journalist and attorney Lloyd Carter has penned a provocative article that probes the financial integrity of [...]
The issue this week concerns the appropriate remedy when controlling shareholder(s) breach the fiduciary duties they owe to the other shareholders. An article by attorney William S. Monnin-Browder discusses whether courts should apply a minority interest discount in a forced sale. Background As explained in many published opinions, “stockholders in the close corporation owe one [...]
This posting continues the question of whether fault should be considered in evaluating a claim for breach of contract, specifically, whether the courts should weigh the “fault” of the non-breaching party. When would such “fault” by the non-breaching party arise? It would seem that three time frames could be considered: Before (i.e., during the formation [...]
This week’s posting considers whether culpability should be considered in a claim for breach of contract. The traditional answer in the U.S. (traditional at least since 1900) is No. As discussed in a recent symposium, “In terms of the Restatement of Contracts conception, then, contract law is strict liability without a contributory negligence defense . [...]
Trusts have been employed in the English legal system for hundreds of years. In 1979, Prof. R.H. Hehnholz reviewed court records to examine the early history of trusts. Prof. Hehnholz started by noting, “As a means of avoiding feudal incidents and of evading the common law rule prohibiting devises of freehold land, the feoffment to [...]
Continuing his recent discussion of fault in contract law, Judge Posner explains that, “The idea of ‘good faith’ is an example. We generally want people to be honest and aboveboard in their dealings with others. But there is no general duty of good faith in contract law. If you offer a low price for some [...]
Judge Richard A. Posner of the Seventh Circuit Court of Appeals contributed his thoughts at a symposium on the rationale for liability for breach of contract. One of his points is a sound analytic distinction between tort liability and contract liability, a concept which is sadly muddled in California cases. Writes Judge Posner, “Here is [...]