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Book part
Publication date: 19 May 2009

Thomas W. Joo

Marriage is often compared to a “contract.” This analogy purports to proceed from a settled concept called “contract,” under which legitimate obligations derive from…

Abstract

Marriage is often compared to a “contract.” This analogy purports to proceed from a settled concept called “contract,” under which legitimate obligations derive from consent. The analogy creates confusion when applied in the legal context. In law, “contract” refers to a broad category of legal obligation. Many legal theorists believe “contractual” enforceability should be based solely on consent. But as a matter of positive legal doctrine, consent is neither necessary nor sufficient to establish enforceability. A contract's enforceability also depends on its relationship to public welfare.

Thus the “contract” analogy does not constitute a legal justification for an approach to marriage based solely on the consent of the parties. It merely expresses a normative preference for a consent-based approach. The chapter illustrates this point using examples of current marriage-related issues, such as covenant marriage, prenuptial agreements, and same-sex marriage.

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Law & Economics: Toward Social Justice
Type: Book
ISBN: 978-1-84855-335-4

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Article
Publication date: 1 April 2004

Georgios I. Zekos

Investigates the differences in protocols between arbitral tribunals and courts, with particular emphasis on US, Greek and English law. Gives examples of each country and…

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2893

Abstract

Investigates the differences in protocols between arbitral tribunals and courts, with particular emphasis on US, Greek and English law. Gives examples of each country and its way of using the law in specific circumstances, and shows the variations therein. Sums up that arbitration is much the better way to gok as it avoids delays and expenses, plus the vexation/frustration of normal litigation. Concludes that the US and Greek constitutions and common law tradition in England appear to allow involved parties to choose their own judge, who can thus be an arbitrator. Discusses e‐commerce and speculates on this for the future.

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Managerial Law, vol. 46 no. 2/3
Type: Research Article
ISSN: 0309-0558

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Article
Publication date: 1 March 2004

Kai Krüger

Markets for public contracting are in the process of transition. Various public/private partnership arrangements replace conventional purchasing, especially within the…

Abstract

Markets for public contracting are in the process of transition. Various public/private partnership arrangements replace conventional purchasing, especially within the local and regional government area. Municipal entities may not be in a position to define their needs up-front because they would not have the overview of what the market may have to offer. So one should ask: Is the traditional ban-on-negotiations in mandatory tender procedures (sealed bidding) - such as it is in EU public procurement law - counter-effective to genuine best value for public money? The article displays significant differences between European Union (EU) law, U.S. law and other regimes such as United Nations Model law, The World Trade Organisation’s Government Procurement Agreement (WTO/GPA), The International Bank for Reconstruction and Development (IBRD), and the NAFTA (North American Free Trade Agreement). New avenues for public/private demand a new agenda and the recent EU 2004 directive scheme attempts to respond to the market challenges. The author accepts that the new directive on public contracting facilitates a more smooth approach than in current EU law with regard to high-tech complicated contract awards, but questions whether the ’competitive dialogue’ really can afford tailor-made solutions to cope with long-term public/private partnership arrangements of the kind now spreading all over Europe

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Journal of Public Procurement, vol. 4 no. 3
Type: Research Article
ISSN: 1535-0118

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Article
Publication date: 1 December 2003

Jo Carby‐Hall

Proposes to treat social law contracts by covering the two most important aspects of the contract of employment, and also the collective agreement. Covers the contract of…

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2600

Abstract

Proposes to treat social law contracts by covering the two most important aspects of the contract of employment, and also the collective agreement. Covers the contract of employment in full with all the integral laws explained as required, including its characteristics, written particulars, sources or regulations, with regard to employers, are also covered. Lengthy coverage of the collective agreement is also included, showing legal as well as moral (!) requirements, also included are cases in law that are covered in depth.

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Managerial Law, vol. 45 no. 3/4
Type: Research Article
ISSN: 0309-0558

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Article
Publication date: 22 June 2010

Muhammad Abu Sadah

The purpose of this paper is to examine the main contract principles which govern the international arbitration contract with special emphasis to examine contract

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1049

Abstract

Purpose

The purpose of this paper is to examine the main contract principles which govern the international arbitration contract with special emphasis to examine contract principle found of the Middle East, how international principles of contract are perceived in the region, and whether there are any dominant contract principles.

Design/methodology/approach

A general exploratory research procedure used to give a better grasp of various aspects of socio‐legal approaches. The paper seeks to create knowledge that can be used to retrieve some pressing social and organisational understanding in the said region. The first part of the paper examines the role of ethics and tradition in understanding Middle Eastern contract principles. The second part examines the impact of Islamic Law on commercial contract principles. The third section analyses the regional perception of international contract principles. Finally, the paper addresses some contemporary issues of international contracts in the Middle East.

Findings

The paper showed that the legal perceptions of international contract principles reflect regional legal thinking which has been influenced by a mixed understanding of regional traditions, Islamic contract law principles as well as Western contract principles when these principles match regional legal culture. Overall, it showed that still under such mixed understanding, there are strong regional legal traditions and these are found in Islamic contract principles and affects commercial contract experiences. In general, a significant difference still exists between modern international contract principles and those in the Middle East.

Practical implications

The paper generates a knowledge that mixed understanding in regard to international contract arbitration principles due historical and cultural reasoning. Arab States does not share common understanding of international contract principles. Thus, it is very superfluous to propose the argument that there is sole Middle Eastern regional perception which dominates every Arab State. Therefore, special understandings and considerations should be given to every international arbitration contract from certain Arab State entity to another.

Originality/value

The paper provides a clear understanding of the guidelines for international commercial arbitration contract in the Middle East. Legal culture should be taken into consideration if a successful contract implementation has to be achieved.

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Journal of International Trade Law and Policy, vol. 9 no. 2
Type: Research Article
ISSN: 1477-0024

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Article
Publication date: 1 February 2000

Georgios I. Zekos

Compares and contrasts the contractual role of bills of lading in the context of Greek, US and English law. Discusses the legal status and contractual roles of these…

Abstract

Compares and contrasts the contractual role of bills of lading in the context of Greek, US and English law. Discusses the legal status and contractual roles of these lading bills in the context of the legislative provisions and associated case law in each of the three countries. Concludes that the role of these bills is unsettled and there is no uniform perception. Recommends measures involving amendments to English legislation, to consolidate the regulation of international trade.

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Managerial Law, vol. 42 no. 1
Type: Research Article
ISSN: 0309-0558

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Article
Publication date: 23 March 2012

Larry A. DiMatteo

The purpose of this paper is to better understand how commercial contracts are interpreted and the level of control that contracting parties have over the judicial…

Abstract

Purpose

The purpose of this paper is to better understand how commercial contracts are interpreted and the level of control that contracting parties have over the judicial interpretation of their contracts.

Design/methodology/approach

The paper approaches the subject of commercial contract interpretation through an analysis of four dichotomies debated in legal scholarship and found in judicial decisions. The four dichotomies are formalism versus realism, literalism versus contextualism, facilitation versus regulation, and rules versus standards.

Findings

The main finding of the paper is that both poles of each of the dichotomies play important roles in the interpretation and enforcement of commercial contracts. For example, contract interpretation characterized by a high degree of formalism looks to the four‐corners of the contract for interpretive answers. In turn, some courts make use of external factors – such as distributive justice or public policy concerns in interpreting contracts.

Research limitations/implications

One of the research implications of the paper is the need for a more in‐depth analysis of how contracting parties may agree on how their contracts are to be interpreted and whether courts should be obligated to enforce party‐mandated rules of interpretation.

Practical implications

The practical implication of understanding the means and methods of contract interpretation is that it leads to a better understanding of commercial contracts in transborder transactions.

Originality/value

The value of this research lies upon the fundamental premise that the same philosophies and theories of interpretation found in most legal systems are replicated in the area of international commercial contracting.

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Journal of International Trade Law and Policy, vol. 11 no. 1
Type: Research Article
ISSN: 1477-0024

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Article
Publication date: 1 January 1975

Knight's Industrial Law Reports goes into a new style and format as Managerial Law This issue of KILR is restyled Managerial Law and it now appears on a continuous…

Abstract

Knight's Industrial Law Reports goes into a new style and format as Managerial Law This issue of KILR is restyled Managerial Law and it now appears on a continuous updating basis rather than as a monthly routine affair.

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Managerial Law, vol. 18 no. 1
Type: Research Article
ISSN: 0309-0558

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Article
Publication date: 1 April 2017

Kirsi-Maria Halonen

The paper examines the disclosure of information within public contract awards under EU law. EU Public Procurement rules have several objectives that may at some times be…

Abstract

The paper examines the disclosure of information within public contract awards under EU law. EU Public Procurement rules have several objectives that may at some times be conflicting with each other. A certain level of transparency of public procurement procedure is necessary in order to fight corruption, enhance trade opportunities and ensure effective legal remedies. On the other hand, too much transparency may have certain anti-competitive effects. The national laws regarding disclosure of information vary in different EU member states. In Finland the EU law principle of effective remedies has been interpreted as requiring full transparency among the bidders. The transparency rules under EU law and certain Member States' national laws are analysed. As a conclusion, it is suggested that the rules on disclosure should not be left solely to the discretion of member states as the over-transparent approach taken by certain member states may negatively affect the markets both on a national and EU level.

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Journal of Public Procurement, vol. 16 no. 4
Type: Research Article
ISSN: 1535-0118

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Book part
Publication date: 1 July 2004

Imani Perry

In this article Professor Perry argues that Plessy v. Ferguson and the de jure segregation it heralded has overdetermined the discourse on Jim Crow. She demonstrates…

Abstract

In this article Professor Perry argues that Plessy v. Ferguson and the de jure segregation it heralded has overdetermined the discourse on Jim Crow. She demonstrates through a historical analysis of activist movements, popular literature, and case law that private law, specifically property and contract, were significant aspects of Jim Crow law and culture. The failure to understand the significance of private law has limited the breadth of juridical analyses of how to respond to racial divisions and injustices. Perry therefore contends that a paradigmatic shift is necessary in scholarly analyses of the Jim Crow era, to include private law, and moreover that this shift will enrich our understandings of both historic and current inequalities.

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Studies in Law, Politics and Society
Type: Book
ISBN: 978-0-76231-109-5

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