Clear Rules Still Produce Fuzzy Results: Impossibility in Indian Contract Law
Robert Scott and others have forcefully argued that the justification for commercial statute-drafting is efficiency. Since commercial parties can draft their own contracts, legislatures should draft default rules, he argues, only when it will save commercial parties time and money. Greater efficiency is achieved when the costs of the gains produced by commercial transactions are reduced. Thus, with few exceptions, the rules of commercial law should be clear, precise, and what most parties would want most of the time. Statutory precision emulates a well-drafted agreement and reduces the risk of moral hazard. The excuse of contractual impossibility (including the liberalized version of commercial impracticability as well as the reciprocal doctrine of frustration of purpose, collectively, impracticability) stands in some tension with the goal of efficiency. Two responses to this uncertainty seem plausible. First, the law could provide a more precise impracticability rule, one that complies with the precision corollary. Alternatively, we can simply give up on the impracticability project, leaving risks to fall where they may and any excuses to the contract parties and their drafting efforts. This article will address the feasibility of the first alternative, that we can build a better impracticability mousetrap. Instead of speculating about what forms a more precise version of impracticability might take, we will examine a currently subsisting example, section 56 of the Indian Contract Act, 1872. I conclude that the Indian Supreme Court has missed an opportunity to apply section 56 as originally understood and that those who stress the goal of efficiency should not count on judicial application of even precise rules.
Changing Contract Lenses: Unexpected Supervening Events in English, New Zealand, U.S., Japanese, and International Sales Law and Practice
This article compares differences in the reasoning underlying contractual relationships between English and New Zealand law and U.S. and Japanese law. It then builds upon an existing framework by adding the notion of didactic formality to identify another important contrast between the laws of these countries. It also discusses how CISG and UPICC fit in to this spectrum. The article concludes by questioning "strong convergence" theory in commercial law worldwide.
Judicial Review, Socio-Economic Rights and the Human Rights Act
INTRODUCTION 1 THE ROLE OF COURTS IN THE PROTECTION OF SOCIO-ECONOMIC RIGHTS: INTERNATIONAL AND DOMESTIC PERSPECTIVES I. The Indivisibility of Human Rights II. The Protection of Socio-economic Rights in Domestic Courts III. Conclusion 2 THE REGIONAL PROTECTION OF SOCIO-ECONOMIC RIGHTS: EUROPE I. Introduction II. The European Convention on Human Rights (ECHR) 1950 III. The Protection of Socio-economic Rights in the ECHR IV. The Protection of Socio-economic Rights in EC/EU Law V. Conclusion 3 COURTS, THE UK CONSTITUTION AND THE HUMAN RIGHTS ACT 1998 I. Introduction II. Reading and Giving Effect to ECHR Rights in UK Courts III. Conclusion 4 JUDICIAL REVIEW: DEFERENCE, RESOURCES AND THE HUMAN RIGHTS ACT I. Introduction II. The Constitutional Foundations of Judicial Review III. Public Law, Deference and the Human Rights Act IV. Conclusion 5 FROM NEED TO 'CHOICE' IN PUBLIC SERVICES: THE BOUNDARIES OF JUDICIAL INTERVENTION IN PRIORITISATION DISPUTES I. Introduction II. NHS Rationing: The Role of Courts in Disputes over Access to Medical Services III. Local Authority Resource Allocation Disputes IV. Interpreting Local Authority Statutory Duties Post-HRA V. Conclusion 6 ARTICLES 3 AND 8 ECHR: FAILURE TO PROVIDE AND POSITIVE OBLIGATIONS IN THE SOCIO-ECONOMIC SPHERE I. Introduction II. Anufrijeva, Article 8 ECHR and Maladministration in the Provision of Welfare III. Article 3 ECHR: Respect for Dignity IV. Conclusion 7 ARTICLE 14 ECHR AND THE UNEQUAL DISTRIBUTION OF PUBLIC GOODS AND SERVICES IN THE UNITED KINGDOM I. Introduction II. Socio-economic Entitlements and the Limits of Substantive Fairness in Article 14 ECHR III. Carson's Case: Refusal of Up-rated Payments to Pensioners Abroad 283 IV. Reynolds' Case: The Intensity of Scrutiny in Other 'Status Disputes' V. Equality and Human Rights VI. Conclusion 8 ARTICLE 6 ECHR: JUDICIAL REVIEW, DUE PROCESS AND THE PROTECTION OF SOCIO-ECONOMIC RIGHTS I. Introduction II. What is a Civil Right for the Purposes of Article 6 ECHR? III. The Quality of Administrative Justice: The Scope of Article IV. Conclusion