This dissertation critically examines the common law caveat subscriptor rule and argues against the strict application of the rule in the context of ‘contracts of necessity’ (which is defined in the research paper). I will begin by explaining what exactly the caveat subscriptor rule entails and how it functions within the realm of mistake in contract as a species of the reliance theory which the South African law of contract endorses. I will then proceed to outline the narrow grounds recognized by the courts to date upon which one may escape the working of the caveat subscriptor rule. In section II of the paper I will briefly discuss the rise of the consumer protection movement and consider the extent to which the Consumer Protection Act now provides added protection to the unwitting signatory against the strict application of the rule. In section III I will critically examine the underlying presumptions of the caveat subscriptor rule which purport to justify the existence and application of the rule itself. I will then proceed to illustrate that while the assumptions underlying the caveat subscriptor rule may have been accurate and relevant in the past, these assumptions are no longer in keeping with the modern era of mass marketing characterized by the widespread use of standard-form contracts and consumer non-readership, which is reflected in recent judgments dealing with unread contract terms. In section IV I will examine the modern reality of consumer non-readership caused by various innate psychological factors and behavioural biases, particularly in the context of contracts of necessity. In section V I show that a change in judicial attitude towards unread contract terms and increased fairness towards the signatory is warranted not only in light of modern consumer behavior, but also in light of the courts constitutional mandate to develop the common law in accordance with section 39 (2) of the Bill of Rights as well as its underlying values. In section VI will propose a new basis for escaping the strict application of the rule grounded in public policy and will conclude by suggesting some practical methods for reform under the common law. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2012.

The objective of this study was to describe the issue of school beverage contracts and childhood obesity from the perspectives of a broad group of stakeholders. Specifically, the perspectives concerning contracts in two Ontario school boards in Canada's 2004-2006 sociopolitical environment were studied. This qualitative study utilized a case study approach to capture the opinions of many stakeholders. Open ended interviews with individuals representing twelve stakeholder groups resulted in five major interrelated themes: "Awareness & Knowledge," "Influences of Obesity & Co-morbidities," "Perceived Value of Beverage Contracts," "Accountability" and "Future Directions (For Shifting Norms). " Stakeholders suggested the use of multidisciplinary and comprehensive strategies to promote healthy choices in the school environment, which is thought to have positive implications for childhood obesity. This study is unique in that it looks at a common issue from a number of different perspectives and reports all viewpoints in an unbiased and clear way showing the similarities and differences of opinions. Information from this study has potential importance in informing future directions to prevent and reduce childhood obesity, especially as this issue relates to the creation of school beverage contracts.

Acquisition research (Graduate School of Business & Public Policy) / MBA Professional Report / The purpose of this MBA Project is to provide an update of the Navy Contract Writing Guide (NCWG) by creating an addendum that specifically addresses contract deficiencies (i.e., contract errors) and offers some tools to help its users remedy existing contract deficiencies and avoid future contract deficiencies in the writing of contracts. The project was conducted with the sponsorship and assistance of the Office of the Assistant Secretary of the Navy for Research, Development, and Acquisition in conjunction with the Defense Finance and Accounting Service, Columbus, Ohio. The guide was updated in December 2003 and again in June 2004 in an effort to provide organization and clear and concise solutions to current contract issues. This effort is viewed as a continuation of these previous efforts to better the quality and effectiveness of the NCWG. Extensive research, incorporating interviews, websites, and regulations were utilized in creating this addendum to the NCWG.

LL.D. / The purpose and main thrust of this thesis are to consider the nature, aim(s), operation and extent of restitutio in integrum as a remedy where consensus is obtained improperly, where iustus error is successfully raised and where a contract is cancelled as a result of breach of contract. A historical analysis indicates that restitutio in integrum in Roman law is shrouded in uncertainty. Restitutio in integrum was an extraordinary and equitable remedy aimed both at nullification of a valid transaction and the reciprocal restoration of performance rendered. It was granted by the praetor in cases of negotia stricti iuris where no other remedy was available to the aggrieved party, inter alia where metus or dolus led to the conclusion of a contract. Complete reciprocal restoration was the aim and a requirement of the remedy. In cases of negotia bonne fidei, the remedies which were available in respect of specific contracts, dealt with the situation. As the distinction between negotia bonne fidei and stricti iuris faded, the need for an extraordinary remedy lapsed. There is, indeed, a possibility that restitutio in integrum no longer functioned as a separate remedy in the Justinian codification. One would not have expected restitutio in integrum to be available as a separate and extraordinary remedy in the Roman Dutch law of contract due to the fact that the principles underlying the negotia bone fidei won the thy after the reception of the Roman law in Europe. Such availability in that system can be attributed to the fusion which took place between the Roman concept of restitutio in integrum and the indigenous concept of "relief". It can be argued that the Roman Dutch remedy of restitutio in integrum arose from the obligations which the dictates of the bona fides imposed on the parties, whilst considerations underpinning enrichment liability were also raised. Restitutio in integrum was, however, still viewed as an equitable remedy and constituted a single remedy with the double aim of nullification and reciprocal restoration. Unlike Roman Dutch law, modern South African law distinguishes between rescission and restitution. This makes it possible to consider separate bases for rescission and restitution. It is submitted that the competence to rescind a contract in the case of improperly obtained consensus arises from the dictates of the bona fides which the law imposes on parties in the antecedent negotiation and performance of contracts. Problems in respect of rescission must be viewed against the background of rescission as a contractual remedy governed by the dictates of good faith. Subsequent to rescission, no causa retinendi exists in respect of the performance (or its value) which is to be restored and an enrichment remedy is at hand. As far as restitution as a component of restitutio in integrum is concerned, it demonstrates all the characteristics attributed to a developed enrichment action and it can be viewed as such pending the development of a general enrichment action. Restitutio in integrum was not applied in our common law in the instances of mistake and the cancellation of contracts by virtue of breach of contract. Our courts probably referred to restitutio in integrum in those circumstances as a result of the paucity of other authority offered by our common law sources. It is argued that the reliance theory underpins the iustus error doctrine. In the case of iustus error no consensus exists and no reasonable reliance is created by the other party which deserves protection. As no contract exists, performance which has been rendered can be recovered with an enrichment remedy. The "technical concept" of restitutio in integrum also has no role to play in the case of breach of contract. It is submitted that the competence to cancel a contract by virtue of breach of contract also arises from the dictates of good faith. Subsequent to cancellation, no causa retinendi exists in respect of the performance (or its value) which is to be restored and the reciprocal duties to restore are enrichment based. The conclusion is reached that the general principles of our law of obligations have developed and evolved sufficiently to enable us to do without an extraordinary remedy such as restitutio in integrum. The adoption of the suggestions made will place the South African law on a modern basis comparable to the approaches existing in related legal systems which are also reviewed.

LL.M. (Law of Contract) / The parol evidence rule encompasses those rules that regulate the admissibility of extrinsic evidence. The parol evidence rule only comes into play when the court has to interpret a written contract and one of the parties argue that the contract or any specific clause does not reflect the common intention between the parties. The court will then follow a two prong approach in interpreting the contract. The court will firstly utilise the rules of interpretation, including the common law principles regarding presumptions. If this does not clarify the disputed clauses of the contract, the court will then rule on whether extrinsic evidence is permissible and consider such extrinsic evidence in an attempt to determine the common intention of the parties. The rules applicable to the admissibility of extrinsic evidence in the South African law of contract developed from a strict formalistic approach as applied in the Delmas Milling v Du Plessis case to an approach where any extrinsic evidence may be admitted, as long as it is admissible in terms of the rules of evidence and it falls within the category of what Harms DP stated in the KPMG Chartered Accountants (SA) v Securefin Ltd case as “context” or “factual matrix”. The KPMG Chartered Accountants (SA) v Securefin Ltd case finally brought the law applicable to the parol evidence rule in the South African law of contract on par with its American and English counterparts.

Research report (L.L.M. (Coursework))--University of the Witwatersrand, Faculty of Commerce, Law and Management, School of Law, 2014

Thesis advisor: Utku Unver / This dissertation consists of two chapters. The first chapter: Dynamic reserves in matching markets with contracts. In this paper we study a matching problem where agents care not only about the institution they are assigned to but also about the contractual terms of their assignment so that they have preferences over institution-contractual term pairs. Each institution has a target distribution of its slots reserved for different contractual terms. If there is less demand for some groups of slots, then the institution is given opportunity to redistribute unassigned slots over other groups. The choice function we construct takes the capacity of each group of seats to be a function of number of vacant seats of groups considered earlier. We advocate the use of a cumulative offer mechanism (COM) with overall choice functions designed for institutions that allow capacity transfer across different groups of seats as an allocation rule. In applications such as engineering school admissions in India, cadet-branch matching problems at the USMA and ROTC where students are ranked according to test scores (and for each group of seats, corresponding choice functions are induced by them), we show that the COM with a monotonic capacity transfer scheme produces stable outcomes, is strategy proof, and respect improvements in test scores. Allowing capacity redistribution increases efficiency. The outcome of the COM with monotone capacity transfer scheme Pareto dominates the outcome of the COM with no capacity transfer. The second chapter: On relationships between substitutes conditions. In the matching with contracts literature, three well-known conditions on choice functions (from stronger to weaker)- substitutability, unilateral substitutability (US) and bilateral substitutability (BS) have proven to be critical. This paper aims to deepen our understanding of them by separately axiomatizing the gap between the BS and the other two. We first introduce a new “doctor separability” (DS) condition and show that BS, DS and irrelevance of rejected contracts (IRC) are equivalent to IRC and US. Due to Hatfield and Kojima (2010) and Aygün and Sönmez (2012), it is known that US, “Pareto separability” (PS), and IRC are equivalent to substitutability and IRC. This, along with our result, implies that BS, DS, PS, and IRC are equivalent to substitutability and IRC. All of these results are given without IRC whenever hospital choices are induced from preferences. / Thesis (PhD) — Boston College, 2015. / Submitted to: Boston College. Graduate School of Arts and Sciences. / Discipline: Economics.

A presente tese realiza uma análise interdisciplinar dos contratos de aliança, arranjos colaborativos desenvolvidos a partir do início da década de 90, cujo objetivo é a implantação de projetos complexos industriais e de infraestrutura. Este trabalho investiga a percepção do autor de que o modelo proposto pelos contratos de aliança, em regra, promove um esvaziamento voluntário da função do contrato como ferramenta de aplicação, ainda que potencial, de sanções a comportamentos culposos, justamente com o fim de não prejudicar a construção natural de uma relação cooperativa. Busca-se ainda compreender a função desempenhada pelo contrato e pelo direito contratual, nesse contexto colaborativo, e qual a relação entre os mecanismos formais e informais de garantia de cumprimento contratual. Sustenta-se que, nesse universo, o aparato formal do contrato auxilia as ferramentas informais de enforcement, fornecendo o arcabouço de troca de informações essencial à criação endógena de confiança. Ademais, a fim de não prejudicar o ambiente cooperativo, sustenta-se a aplicação de sanções contratuais formais somente em situações excepcionais, geralmente caracterizadas pelo elemento de quebra de confiança. Sugere-se, ao longo da tese, que uma abordagem processual de regulação do contrato a qual permite sanção de comportamentos que descumpram o procedimento contratual acordado seria mais adequada do que uma abordagem estritamente substantiva que proteja a relação inicial de troca. Ao final, amparada pelas percepções construídas ao longo da pesquisa, é realizada uma reflexão jurídico-dogmática, na qual, após a contextualização jurídica dos contratos de aliança, lhes são sugeridas interpretações de aplicação de conceitos da teoria obrigacional, e de ferramentas de organização de interesses intracontratuais, como a boa-fé, o conflito de interesses e os deveres fiduciários. / This thesis conducts an interdisciplinary analysis of project alliancing, collaborative arrangements developed as of the beginning of the 90s, whose goal is the implementation of complex industrial and infrastructure projects. This work investigates the perception of the author that the model proposed by alliance contracts, in general, promotes a voluntary emptying of the role of the contract in punishing, even potentially, unintentional contractual defaults, as a means of not harming the natural construction of a cooperative relation. The work seeks to understand the role played by the contract and the contractual law, in such collaborative environment, and what is the relation between formal and informal mechanisms of contractual enforcement. It argues that, in this universe, formal contractual apparatus supports informal contractual enforcement mechanisms, providing a governance framework that allows information exchange, which is essential to the endogenous creation of trust. Moreover, in order not to jeopardize the cooperative environment, this thesis suggests the suitability of formal contractual punishment only in exceptional circumstances, often characterized by the breach of trust. It is suggested, along the thesis, that a procedural approach of contract regulation which allows punishment of behaviors that deviates from agreed contractual procedures may be more suitable than a strictly substantive approach that protects the initial exchange relation. At the end, supported by the perceptions constructed along the research, some legal-dogmatic considerations are made, in which, after legally qualifying the alliance contracts, it is suggested to it some applicative interpretations of concepts of obligational theory, and organizational tools of intracontractual interests, such as good faith, conflicts of interest and fiduciary duties.

The main purpose of the research is to investigate and analyze the concept of fundamental breach of contract in international commercial contracts, and how its inclusion in Iraqi civil law can promote a more effective approach to contractual disputes between Iraqi companies and international partners. Additionally, it aims to raise awareness of the practical value of the application of the concept of fundamental breach in managing contractual disputes involving common and civil law, and ultimately provide a valid contribution to academic knowledge that promotes enhanced understanding of this concept within the different legal systems at a global level. The research method adopted is theoretically comparative in nature and compares the concept of fundamental breach of contract from the perspectives of the United Nations Convention's guidelines on Contracts for the International Sale of Goods 1980 (referred to hereafter as the CISG), English (Common) law and Egyptian (Civil) law. The study is based on the following research questions: i) reasons for the numerous cases of avoidance of international commercial contracts in Iraq due to a fundamental breach of terms; ii) The elements that constitute a 'fundamental breach' of contract; iii) Which legal systems could provide a comprehensive framework of reference to compare the different processes applied in breach of contract in selected case studies, to determine which, if any, is more effective in keeping contracts 'active'. iv) If the outcome of the comparisons could be applied more universally, in cases of arbitration in international commercial contracts, to bridge the differences in individual laws of the countries involved. The concept of fundamental breach is examined in-depth, including its origins, development, application and effectiveness in maintaining the active life of international commercial contracts. A comparison of its application is made within three different legal systems and the study concludes with a commentary on the outcomes of the comparative research, including any limitations and implications for international sales contracts involving different legal systems. Finally, recommendations are made, both for the Iraqi legislature and for future research. The key outcomes are that the CISG rules regarding fundamental breach appear to be more successful in upholding the validity of international commercial contracts than Common or Civil law. This can be attributed to the way in which the CISG tailored the concept of fundamental breach. To date, it has been ratified by 83 countries. Not only are its principles rooted in the two primary law systems (Common and Civil), but they are also significantly influenced by the doctrinal concepts that vary considerably across different national law systems. This suggests the CISG offers a greater degree of flexibility and harmony across the legal systems, and does not require any court order or ruling in instances of contract avoidance. Indeed, its greatest success lies in the flexibility of its principles due to the additional terms it provides in promoting the life of the contract; namely: additional period of time, partial avoidance, anticipatory breach and instalments contracts. There are limitations, however, despite the CISG rules providing a degree of flexibility. The definition of fundamental breach given in Art.25 is vague due to the generality of the terminology used by the CISG drafters. Unlike the trend of the 1998 Principles of European Contract Law and the 1994 UNIDROlT Principles of International Commercial Contracts, no examples are given to provide guidance on the exact meaning of the term. It is also noticeable that the CISG's notion of fundamental breach is more common law oriented. As a result, this may be a source of possible conflict in countries where civil law is adopted such as: Egypt, Iraq, Kuwait, Jordan, Libya, amongst others. The implications of adopting the CISG approach to determining fundamental breach in international commercial contracts are that contractual parties could incur delays and subsequent financial losses while disputes involving interpretation of its rules are resolved. Nevertheless, CISG principles governing fundamental breach are increasingly popular as the applicable law for international contracts, since they fulfill a primary goal of contract law to act in accordance with developmental requirements and changes. Contract law has to correspond to a growing economic need and be flexible in addressing emerging difficulties and shifting conditions. For this reason the CISG's principles are likely to continue to be adopted by contractual parties within the arena of International Trade. A necessary recommendation, however, concerns the terminology of the CISG rules on fundamental breach, which could benefit from being more specific in order to satisfy the demands of international commercial contracts that involve countries governed by common and civi11aw. In short, greater specificity is required in ascertaining the degree of seriousness, detriment, foreseeability and time of foreseeability in cases of contractual breach.Establishing an international body for resolving disputes stemming from the CISG is highly recommended. The given body could contribute greatly to reducing both the time and the cost resulting from such disputes. Reviewing the provisions of the CISG periodically is, therefore, highly advisable for making changes or establishing new rules applicable to the new developments in trade. The avoidance of contract in electronic trade contracts could represent an example where this would be necessary. However, more discussion is needed to elaborate on the development of the wording of the CISG principles in this respect. Finally, with regard to Iraq, its legislation would do well to make provision to include the concept of fundamental breach in accordance with the principles of the CISG. This reform is necessary since Iraq's existing law is no longer capable of properly addressing the special demands of international trade to ensure disputes are dealt with in a manner that is reliable, consistent, valid and fair to the contractual parties concerned.

Apples and pears may be related fruits, but that does not mean they are the same! If I were to host a dinner party and intended to bake and serve an apple tart, but was delivered pears, I would end up with a pear frangipane and some very disappointed house guests. The context in which words are communicated is very important - apples and pears could relate to fruits or indeed stairs. Recognising intention as being important even in social contracts highlights the importance of intention in commercial transactions. The utility of contract law is to facilitate the agreement of parties and the rights and obligations assumed by them -this is the true essence of contract. Reverting to the analogy above, indemnity clauses although in some cases achieving similar ends as exclusion clauses, are not intended to result in exclusions of liability but are a more specific method of contractual risk management. One could infer that parties who specifically make use of indemnity clauses do not intend these to function as limitation of liability clauses, neither would they have intended such clauses be construed an exclusion of liability. Exclusion clauses could be construed as defences to accrued rights, however a central theme in this thesis is that an exclusion clause is clear in its function- it negates the accrual of a primary duty, implied by law. An indemnity on the other hand undeniably relates to secondary obligations to compensate or make good loss upon breach of primary obligations to perform. An indemnity clause, transfers secondary obligations to compensate to another who has assumed such obligation(s). In most cases the transferred obligation is financial; an indemnity is similar to a contractual insurance in this sense. An indemnity clause is not an exclusion clause. The difference is not only academic but also relevant to commerce. As the indemnity becomes a more common feature in high risk and high value contracting, certainty of its meaning is all too important. Where an indemnity is misconstrued as an exclusion of liability, the latter a duty defining clause, this could have an effect on the insurance arrangements between the parties ultimately making the venture uneconomical for one or both of the parties. The certainty of a contractual term enhances its effectiveness and consequently reduces the economic transaction costs of its inclusion. Thus, parties can focus on the first stage of Posner's transaction cost theory – 'negotiations and drafting' enhancing the utility of contract law.