Germany has a statute dealing with "general conditions" , i.e. "boilerplate", no matter if used in consumer or BtoB contracts, and it seems to me that it is based on jurisprudence based on the good faith argument - if I remember this right.
Sincères salutations / Best regards / Mit freundlichen Grüssen
P Avant d'imprimer cet e-mail, pensez à l'environnement.
Gerlinde BERGER-WALLISER
Professeur Associé / Associate Professor
Département Environnement des Affaires / Department of Business Environment
ICN Business School
13 rue Michel Ney
54000 Nancy
France
Tel : +33 3 83 17 37 87
Fax : +33 3 83 17 30 80
www.icn-groupe. <http://www.icn-groupe./> fr <http://www.icn-groupe.fr/>
________________________________
De: Academy of Legal Studies in Business (ALSB) Talk de la part de Petty, Ross
Date: ven. 22/10/2010 16:37
À: [log in to unmask]
Objet : Re: Are Traditional Rules Obsolete?
The EU has a different approach enacting a Directive that deals with unfair terms in consumer contracts and goes way beyond FTC actions in the 1970s dealing with waiver of defense clauses and inconvenient forums. Jenny Hamilton and I wrote a paper on this: Seeking a Single Policy for Contractual Unfairness to Consumers: A Comparison of US and EU Efforts, 38(1) Journal of Consumer Affairs 146-166 (Summer 2004).
Thanks to everyone who commented on my Half course in the MBA core posting. Many interesting ideas there.
Ross D. Petty
Professor of Marketing Law
Zwerling Family Term Chair
Babson College
Babson Park, MA 02457
(781) 239-5529
From: Academy of Legal Studies in Business (ALSB) Talk [mailto:[log in to unmask]] On Behalf Of James Highsmith
Sent: Friday, October 22, 2010 10:30 AM
To: [log in to unmask]
Subject: Re: Are Traditional Rules Obsolete?
Ken, I 'll bite. Yes, without contracts of adhesion modern commercial practice would impose high transaction costs for negotiation. The costs however would likely lead to a negotiation that ends roughly in the same place as the terms of the contract of adhesion. Since we know most will not comprehend the legalese even if read, it seems sensible to impose a more liberal interpretation of unconscionability on overreaching terms that the stronger party has imposed. I don't know if there is any evidence in more recent contract cases that courts are moving in that direction, or if they recognize a more robust standard of ethical behavior that requires the stronger party to play fair for both sides in imposing contracts of adhesion. I certainly see no reason why the 'good faith' requirement in the UCC could not used to negate portions of contracts that are too overtly one-sided to enforce in good conscience. Application of reasonable standards of commercial practice the code requires could also be useful in arresting the development of lop-sided contracts.
As for imputing knowledge in large organizations, a dilution of that principle would likely lead to less rigorous management and supervision. The trend of the law seems instead to be to strengthen that standard, e.g. in discrimination law and SOX. If we view this principle as less fault based and more akin to strict liability, it is method of imposing costs on the entity that creates them (as a cost of doing business) rather than letting them fall on an innocent party who is unable to effectively insure against them.
I hope your thoughts encourage others to discuss here. This sounds like one or two good articles in the making. Best regards, James Highsmith
________________________________
From: "Kenneth Schneyer" <[log in to unmask]>
To: [log in to unmask]
Sent: Friday, October 22, 2010 7:00:31 AM
Subject: Are Traditional Rules Obsolete?
Ginny raises a broader point that I've been brooding about for a few years now.
Contract law (and related commercial law, such as Article 3) rests on a set of assumptions about how human beings interact to create agreements. Fundamentally contract law assumes that people negotiate with each other in good faith and arrive at bargains they can both (all) live with. Contracts are binding because both parties had the freedom to walk away from the deal, and both chose overtly to accept it. That is, the ethical justification for holding people to these agreements is the free choice they exercised in making them.
But we have arrived at a moment in commercial history when this frequently not the case. Large companies feel the need to create contractual agreements in order to protect their interests, but because of the scale of their operations, it is commercially impracticable to negotiate such arrangements separately with every customer. Consequently long, boilerplate, take-it-or-leave-it agreements in archaic Legalese are repeatedly presented to consumers who are (let's be honest) not actually expected to read them. There is no actual negotiation, no realistic opportunity for the customer to suggest alternative terms. The "agreement" is a set of requirements imposed by the seller -- and while these requirements often are (and are always claimed to be) necessary for the seller to continue its business, they also include frequent overreaching and terms that no reasonable person would agree to if given a meaningful choice.
Yet courts continue to treat these agreements as binding in the same way traditionally negotiated contracts are binding.
In similar manner, it is unrealistic to expect every worker in a 100,000-employee corporation to know every relevant thing every other employee has learned. But we continue to apply the rules of agency to pretend that the corporation is instantly notified.
Basically the scale of modern business makes traditional rules of contract, agency and similar concepts look obsolete. Either business on such a scale is incompatible with our fundamental notions of justice and should be abolished (unlikely), or the rules need to be altered so that individuals can be realistically protected without putting large enterprises out of business.
Discuss?
Ken
-----Original Message-----
From: Academy of Legal Studies in Business (ALSB) Talk [mailto:[log in to unmask]] On Behalf Of Virginia Maurer
Sent: Friday, October 22, 2010 9:23 AM
To: [log in to unmask]
Subject: Re: Half course in MBA Core WARNING: POLITICAL CONTENT & Somewhat of a Change in Topic
I am astounded at the behavior of foreclosing banks who regard the absence of a negotiable instrument as a "technicality". A technicality? They are foreclosing on someone's home and, worse, selling it to an unsuspecting buyer, and cannot produce evidence of the debt?
Can I run my business that way? Sue you on a note that I cannot produce, but assure the judge that it must exist somewhere and says what I say it says?
Think of the possibilities! All the more reason why business students need to know about good old fashioned negotiable instrument law. Who on earth LOST the notes?
From: Academy of Legal Studies in Business (ALSB) Talk [mailto:[log in to unmask]] On Behalf Of Robert D. Sprague
Sent: Friday, October 22, 2010 8:25 AM
To: [log in to unmask]
Subject: Re: Half course in MBA Core WARNING: POLITICAL CONTENT & Somewhat of a Change in Topic
Along the lines of Keith's comments, I'm interested if anyone has any favorite authors or articles on the subjects of corporatism and/or neoliberalism?
Thanks (and you can e-mail me privately at the address below if you prefer).
Bob
Robert Sprague
Associate Professor
University of Wyoming College of Business
Department of Management & Marketing
1000 E. University Avenue, Dept. 3275 * Laramie, Wyoming 82071
Phone: 307-766-5670 * E-mail: [log in to unmask] * Website: http://www.uwyo.edu/sprague
<http://business.uwyo.edu/>
From: Academy of Legal Studies in Business (ALSB) Talk [mailto:[log in to unmask]] On Behalf Of Keith A Maxwell
Sent: Thursday, October 21, 2010 11:07 PM
To: [log in to unmask]
Subject: Re: Half course in MBA Core WARNING: POLITICAL CONTENT
If the Congress changes hands, MBA's won't need to worry about what law might have to say about their actions. And ethics...who thinks that is a threat to them? Ask your deans.
Keith A. Maxwell, J.D.
Nat S. and Marian W. Rogers Professor (Emeritus)
Professor Emeritus Legal Studies and Ethics in Business
University of Puget Sound
Tacoma, WA
Adjunct Professor of Business Law
Dixie State College
Saint George, UT
________________________________
From: Academy of Legal Studies in Business (ALSB) Talk [[log in to unmask]] On Behalf Of James Highsmith [[log in to unmask]]
Sent: Thursday, October 21, 2010 8:45 PM
To: [log in to unmask]
Subject: Re: Half course in MBA Core
WOW, this thread is scary. So many approaches to minimize law and achieve very little. Our MBA program has a three-unit course called 'Ethical and Regulatory Environment of Business.' Thus law and ethics are integrated in one course..focused on public law, not private law topics (as contracts). Frankly, I think MBA students need to gain this private law knowledge, if they don't have it, through a 'remedial' course. James
________________________________
From: "Connie Bagley" <[log in to unmask]>
To: [log in to unmask]
Sent: Thursday, October 21, 2010 7:19:53 PM
Subject: Re: Half course in MBA Core
So far we've avoided that fate at Yale. I teach a course "Law for Executives" in our executive MBA program in healthcare. The students take that in addition to the course State & Society. I think tailoring the law class to the executives to make explicit its relevance is important. Our non-law colleagues might still try to kill the course but having strong support from the students can help. Best, Connie
Constance E. Bagley
Professor in the Practice of Law and Management
YALE SCHOOL OF MANAGEMENT
135 Prospect Street
P.O. Box 208200
New Haven, CT 06520-8200
203.432.8398 (voice)
203.436.0630 (fax)
[log in to unmask]
Physical Office: 46 Hillhouse, Room 1
New Haven CT 06511
Assistant: Paula Blanchette
203.432.6018
[log in to unmask]
From: Academy of Legal Studies in Business (ALSB) Talk [mailto:[log in to unmask]] On Behalf Of Michael O'Hara
Sent: Thursday, October 21, 2010 2:04 PM
To: [log in to unmask]
Subject: Re: Half course in MBA Core
ALSBTALK:
What is "fraud"? Not that that question is in any way related to this thread, I just like to ponder that question on occasion.
At UNO we have an MBA and an Executive MBA. While we proudly tout the EMBA as unlike the vast majority of EMBA programs since UNO's is a genuine academic degree rather than merely extra hours of golf practice while answering softball questions about the importance of discounting future values. That said, very many UNO students (including some of the brighter EMBA students) distinguish the two degree programs by identifying one as the "real MBA".
The EMBA curriculum was redesigned and a core subject area was allocated merely one-half of a single 3 credit hour course. Surely you understand that one must be responsive to competitive pressures! Within a couple of years the responsible faculty of that core area requested another curriculum redesign that built upon the first by completely eliminating that truncated core area from the EMBA program.
Wanna guess who went to zero? The answer is below my signature box so that you can't cheat.
Michael
Professor Michael J. O'Hara, J.D., Ph.D.
Finance, Banking, & Law Department
College of Business Administration
Mammel Hall 228
University of Nebraska at Omaha
6708 Pine Street
Omaha NE 68182-0048
[log in to unmask]
(402) 554 - 2823 voice fax (402) 554 - 2680
http://cba.unomaha.edu/faculty/mohara/web/ohara.htm
Accounting.
Save yourself a pile of misery. Take one of two approaches. First, accept magnanimously the reduction in cost allocation and revenue generation implicit in this curriculum redesign decision but do not alter one iota the quantum of material delivered (i.e., law becomes the weed out course). Sometimes the real world differs markedly from the ideal world, so sometimes you have to go 100% faster. Or, second, just opt out now. That is, respectfully thank the decision makers for their efforts at preserving as much as was viewed by them as feasible given other constraints they were obligated to accommodate, but assert that professionalism precludes you from accepting their offer in good conscious. Don't be surprised if they keep the 1/2 law course and stuff it with overtly easy "A" part-timers. You will be much happier watching the second option as compared with personally doing the second option.
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