This paper is about the remedy of disgorgement for breach of contract. In it I argue for two conclusions. I first argue that, prima facie at least, disgorgement damages for breach of contract present something of a puzzle. But second, I argue that if we pay close attention to the notion of contractual performance, this puzzle can be resolved in a way that is consistent with principles of corrective justice. In particular, I suggest that even if a (...) contract gives the promisee a right to only the promisor's performance of the contract, such a right can sometimes entail the acquisition by the promisee of certain rights of ownership. And in situations in which such rights are acquired, the disappointed promisee is entitled to the gains realized by the promisor in breach of contract by reason of the fact that such gains are something to which the promisee has an antecedent right. (shrink)

Using the behavioral agency model, we analyze how two compensation design characteristics, pay-performance sensitivity and duration of CEO compensation, affect corporate social performance. We find that the performance sensitivity of CEO pay is negatively associated with poor social performance but also negatively affects strong social performance. These results suggest that pay-performance sensitivity increases the relevance of potential negative consequences of poor social performance. However, the ‘insurance’ benefits of strong social performance may also (...) become less relevant. With respect to the duration of CEO compensation, we find that it reduces poor social performance. This finding confirms arguments that a long-term compensation time horizon increases the perceived threat that the negative effects of poor social performance will become visible. With our findings, we integrate behavioral agency theory with the traditional stakeholder views. (shrink)

Although there is an increasing body of opinion that awards of damages for breach of contract should take account of the claimant’s performance interest, there has been little in the way of analysis of what the performance interest is. Commonly the concept is put forward as simply a reformulation or reconceptualization of the expectation interest, itself hitherto regarded as the one true contractual interest. Such thinking is flawed. A closer analysis of contract doctrine shows there to (...) be two distinct contractual interests; in receiving performance, and in being compensated for losses caused by non-performance. Receiving compensatory damages for non-performance is not the same as receiving performance. At present, this important difference is not fully appreciated, resulting in a failure to develop a principled approach to the claims that can be made following a breach of contract. Recognition of this distinction forces us to confront the fundamental question of how committed we are to the notion that contracts entail a right to performance. This article examines the distinction between these two interests, how the performance interest may be given effect by a damages award, and what the consequences of this analysis are for our understanding of the nature of contractual obligation. (shrink)

With the intensification of COVID-19 epidemic, it becomes prominent to discuss the issue about the influence of psychological contract breach on job performance of new generation of employees. Based on social exchange theory, fairness theory, and conservation of resource theory, this study constructed a relationship model between psychological contract breach and job performance of new generation of employees with considering the mediating effect of job burnout and the moderating effect of past breach experience. Our hypotheses were (...) tested using data from 235 respondents working in Yunnan Province, China. The results were as follows: first, psychological contract breach had a significant negative effect on job performance of new generation of employees, whether in the whole sample or in two grouped samples; second, both in the overall sample and the grouped sample of state-owned enterprises, job burnout partially mediated the negative relationship between psychological contract breach and job performance of new generation of employees, and past experience of breach positively moderated the negative relationship between psychological contract breach and job performance of new generation of employees; third, in the grouped sample of non-state-owned enterprises, job burnout did not play a significant mediating role in the relationship between psychological contract breach and job performance of new generation of employees, and past breach experience did not play a significant moderating role in this relationship. These findings uncover the psychological mechanism underlying work performance of new generation of employees, and also provide useful theoretical reference for management practices of new generation of employees among different natures of enterprises. (shrink)

The development of electronic agents that increasingly play an active role in the contract formation and execution process has highlighted the need for the creation of law-abiding autonomous agent systems. The principle of good faith is an important guideline for contractual behaviour which permeates civil law systems. This paper examines how this principle is applied both during the negotiation of a contract and during its performance. Selected examples from civil law literature of precontractual duties of good faith, (...) and of precontractual behaviour that is deemed to be contrary to good faith, are discussed. This is followed by a discussion of the extent to which such duties are recognised, or such behaviour proscribed, in common law jurisdictions. Some common standards for precontractual behaviour in civil and common law systems are identified. There is then a parallel analysis of the principle of good faith in contract performance with a view to identifying common traits or standards between civil and common law systems. These standards, in the situation where contracts are being negotiated and/or performed by or through electronic agents, would need to be reflected in the way such agents operate. (shrink)

The authors of this article use systemic, comparative and historical methods to review the most representative legal systems – rench, English and German – and analyse how these legal systems deal with the effects of change in circumstances on the performance of a contract. The authors also discuss solutions adopted by scholar groups working on supranational contract law (soft law) instruments, namely, UNIDROIT Principles of International Commercial Contracts and Principles of European Contract Law, stressing that these (...) sets of principles have significantly affected Lithuanian contract law provisions on changed circumstances. The authors concisely evaluate the case law of the Supreme Court of Lithuania on the application of the provisions on change in circumstances and their effect on the performance of a contract. (shrink)

With the knowledge that team work is not always associated with high(er) performance, we draw from the Multi-Level Theory of Psychological Contracts, Person-Environment Fit Theory, and Optimal Distinctiveness Theory to study shared perceptions of psychological contract (PC) breach in relation to shared perceptions of complementary and supplementary fit to explain why some teams perform better than other teams. We collected three repeated survey measures in a sample of 128 respondents across 46 teams. After having made sure that we (...) met all statistical criteria, we aggregated our focal variables to the team-level and analysed our data by means of a longitudinal three-wave autoregressive moderated-mediation model in which each relationship was one-time lag apart. We found that shared perceptions of PC breach were directly negatively related to team output and negatively related to perceived team member effectiveness through a decrease in shared perceptions of supplementary fit. However, we also demonstrated a beneficial process in that shared perceptions of PC breach were positively related to shared perceptions of complementary fit, which in turn were positively related to team output. Moreover, best team output appeared in teams that could combine high shared perceptions of complementary fit with modest to high shared perceptions of supplementary fit. Overall, our findings seem to indicate that in terms of team output there may be a bright side to perceptions of PC breach and that perceived person-team fit may play an important role in this process. (shrink)

The innovation activities of new generation of employees have the characteristics of double network embeddedness, and the degree of psychological contract fulfilment is an important factor that affects their innovation performance. Based on the attributes of internal network embeddedness and external network embeddedness, this paper builds a hypothesis model of the relationship between network embeddedness, psychological contract and innovation performance. It explores the impact and mechanism of network embeddedness on the innovation performance of new generation (...) of employees and the mediating role of the psychological contract. Empirical research shows that network embeddedness has a positive effect on the innovation performance of new generation of employees. The psychological contract has a mediating role in network embeddedness on innovation performance of new generation of employees. These conclusions continue and deepen the research on network embeddedness and innovation performance and further enrich and expand the application of social networks in the research of individual innovation performance of new generation of employees. (shrink)

The minimum performance rule applies where the defendant who has repudiated his contract would have had a choice as to how to perform it. The rule requires that damages be assessed on the basis that the defendant would have chosen to perform in the least onerous manner. Two principal criticisms of the rule are made. The first is that the rule’s fundamental assumption, that minimum performance is all the claimant is entitled to, rests on a flawed understanding (...) of what it means to have a choice as to how to perform a promise. The second is that the rule is wrongly applied to claims for consequential loss. Having shown that the rule has no remaining role, the conclusion reached is that it should be abandoned. (shrink)

The U.S. government embraces the concepts of privatization and market competition, but the realm of contracting shows that it has not always been able to put its principles into practice. Although the contracting system is supposed to be open and competitive, in recent years the government has often awarded contracts with little or no competitive bidding, has chosen to award mostly cost-plus type contracts that force the government to assume more of the risk, and lacked efficiency in monitoring and overseeing (...) private contractors. While the number and value of contracts have increased, the workforce to oversee these contracts has been reduced, preventing the government from adequately enforcing compliance with the contractors, and the government has not made use of past performance evaluations in its contracting system. Private contractors that do business with the U.S. government are for the most part well-established firms with ample resources and inside contacts; many contracts are still being awarded on preferential treatment and to the larger and well-established contractors. (shrink)

Extant literature has documented mixed findings concerning the relationship between abusive supervision and employee performance. While most studies show a negative relationship, others reveal that abusive supervision can be motivating and performance-enhancing, and still others find no effect. To advance our understanding of this relationship, the present study examines employees’ objective and quantifiable key performance indicators (KPIs) as an outcome, while investigating employment contract type as a critical boundary condition. This study also explores an alternative outcome (...) of abusive supervision by examining whether its effects extend to employees’ behavior towards customers, specifically in the form of customer-directed sabotage. A two-wave multi-source field study was conducted with 1,331 customer service representatives from 139 call-center teams. Findings suggest an alarming phenomenon: for probationary employees, an inverted U-shaped relationship exists between abusive supervision and employees’ KPIs, such that low to moderate levels of abusive supervision increase, but moderate to high levels of abusive supervision decrease, their job performance. For permanent employees, KPIs are less affected by abusive supervision. However, abusive supervision is positively related to employees’ customer-directed sabotage behavior, and this effect is stronger for permanent (vs. probationary) employees. The theoretical and practical implications of the findings for leadership and business ethics are discussed. (shrink)

Modern contract law accords considerable significance to the basic assumptions on which a contract is made. It thus takes to heart a failure of a belief whose truthfulness is taken for granted by both parties. Where the failure results from the parties’ mistake at the time of formation, “the contract is voidable by the adversely affected party,” if that mistake “has a material effect on the agreed exchange of performances” and unless that party “bears the risk of (...) the mistake.”1 Where, in turn, the failure of such a basic assumption results from the parties’ erroneous beliefs about future states of the world, a party’s duty to render performance may be discharged if they are not responsible for the supervening impracticability or frustration and “unless the language or the circumstances indicate the contrary.”2. (shrink)

We can often specify how we would contract by a certain sentence by saying that this contraction would coincide with some other contraction that we know how to perform. We can for instance clarify that our contraction by p&q would coincide with our contraction by p, or by q, or by {p, q}. In a framework where the set of potential outcomes is known, some contractions are “self-evident” in the sense that there is only one serious candidate that can (...) be the outcome of such a contraction. Contraction by a specific contractee (sentence or set of sentences to be contracted) is bootstrapped if it is specified by saying that it coincides with some such self-evident contraction. For a wide range of (multiple) contraction operators, contractions by any contractee can be bootstrapped. This means that the selection mechanism (selection function, incision function, etc.) can be replaced by a function called a bootstrapping selector that assigns to each contractee some “self-evident” contractee that yields the same outcome. With bootstrapping we can eliminate traditional extralogical components in contraction (e.g., selection functions) and replace them by bootstrapping selectors that reflect more closely the ways in which we actually reason and argue about belief contraction. (shrink)

Workplace bullying is a phenomenon that can have serious detrimental effects on health, work-related attitudes, and the behavior of the target. Particularly, workplace bullying exposure has been linked to lower level of general well-being, job satisfaction, vigor, and performance and higher level of burnout, workplace deviance, and turnover intentions. However, the psychological mechanisms behind these relations are still not well-understood. Drawing on psychological contract and self-determination theory (SDT), we hypothesized that perceptions of contract violation and the frustration (...) of basic needs mediate the relationship between workplace bullying exposure and well-being, attitudinal, and behavioral outcomes. Self-reported data were collected among employees with different working backgrounds (N= 1,257)viaAmazon's Mechanical Turk in an online survey. Results showed that feelings of contract violation and frustration of basic needs accounted for unique variation in well-being, work satisfaction, burnout, vigor, and turnover intentions, pointing to individual contributions of both psychological mechanisms. However, when controlled for frustration of basic needs, feelings of psychological contract violation were no longer a mediator between workplace bullying exposure and work performance. Helping employees to deal effectively with workplace bullying exposure might buffer its negative effects and reduce their experienced frustration of basic needs, preserving their well-being, vigor, and work performance and, eventually, prevent burnout. The present study is the first to concurrently elucidate the proposed psychological mechanisms and unique contributions of psychological contract violation and frustration of basic needs in the context of workplace bullying. (shrink)

We show that the fundamental legal structure of a well-written financial contract follows a state-transition logic that can be formalized mathematically as a finite-state machine (specifically, a deterministic finite automaton or DFA). The automaton defines the states that a financial relationship can be in, such as “default,” “delinquency,” “performing,” etc., and it defines an “alphabet” of events that can trigger state transitions, such as “payment arrives,” “due date passes,” etc. The core of a contract describes the rules by (...) which different sequences of events trigger particular sequences of state transitions in the relationship between the counterparties. By conceptualizing and representing the legal structure of a contract in this way, we expose it to a range of powerful tools and results from the theory of computation. These allow, for example, automated reasoning to determine whether a contract is internally coherent and whether it is complete relative to a particular event alphabet. We illustrate the process by representing a simple loan agreement as an automaton. (shrink)

I. Introduction Two kinds of remedies have traditionally been employed for breach of contract: legal relief and equitable relief. Legal relief normally takes the form of money damages. Equitable relief normally consists either of specific performance or an injunction – that is, the party in breach may be ordered to perform an act or to refrain from performing an act. In this article I will use a “consent theory of contract” to assess the choice between money damages (...) and specific performance. According to such a theory, contractual obligation is dependent on more fundamental entitlements of the parties and arises as a result of the parties' consent to transfer alienable rights. My thesis will be that the normal rule favoring money damages should be replaced with one that presumptively favors specific performance unless the parties have consented to money damages instead. The principal obstacle to such an approach is the reluctance of courts to specifically enforce contracts for personal services. The philosophical distinction between alienable and inalienable rights bolsters this historical reticence, since a right to personal services may be seen as inalienable. I will then explain why, if the subject matter of a contract for personal services is properly confined to an alienable right to money damages for failure to perform, specific enforcement of such contracts is no longer problematic. Finally, I shall consider whether the subject matter of contracts for corporate services is properly confined to money damages like contracts for personal services, or whether performance of corporate services can be made the subject of a valid rights transfer and judicially compelled in the same manner as contracts for external resources. (shrink)

The paper outlines ongoing research on logic-based tools for the analysis and representation of legal contracts, of the kind frequently encountered in large-scale engineering projects and complex, long-term trading agreements. We consider both contract formation and contract performance, in each case identifying the representational issues and the prospects for providing automated support tools.

It is a common charge that treaties, perhaps especially recent treaties relating to economic activity, provide unreasonable restrictions on the sovereignty of the state parties. While this charge has been made most forcefully by smaller states, it is sometimes raised with justification by larger states or state-like bodies such as the E.U. as well. When a tribunal judging a dispute on an economic treaty tells a state that it may no longer make decisions such as to accept or reject genetically (...) modified foods, allow internet gambling, or produce generic drugs for domestic consumption, the citizens of the state may rightfully think they have lost important aspects of sovereignty to bodies that do not have legitimate authority to govern. This, in turn, makes negotiating treaties, despite their obvious value, much harder than it otherwise would be, leading to decreased cooperation and the forgoing of potentially significant gain. In this paper, I argue that by importing certain ideas from contract theory to the interpretation of treaties, these worries may be significantly reduced. Contracts have the seemingly paradoxical ability to increase the autonomy of the signers by allowing them to bind themselves to perform certain future actions. But, the ability of contracts to perform this function would be greatly reduced if the only possible remedy for breach were specific performance. Yet, an analogous approach to treaties is common among many important theorists of international law, who demand the equivalence of specific performance in the case of treaties. I will show how importing ideas from contract law can help ensure that treaties, especially economic treaties, are sovereignty-enhancing for states in a way that is similar to the way that contracts may be autonomy-enhancing for individuals, and will show that importing these elements from contract law will strengthen, not undermine, the legitimacy and fairness of international law. (Please download the full paper from SSRN at the link on this page). (shrink)

Soldiers sign contracts to obey lawful orders; they also swear oaths to this end. The enlistment contract for the Armed Forces of the United States combines both elements: -/- '9a. My enlistment is more than an employment agreement. As a member of the Armed Forces of the United States, I will be: (1) Required to obey all lawful orders and perform all assigned duties … (4) Required upon order to serve in combat or other hazardous situations.' -/- We standardly (...) think that these oaths and contracts give soldiers new moral reasons to fight. Many also think that soldiers who are ordered to fight by legitimate states have moral reasons to obey those orders, just in virtue of their provenance. -/- We generate these reasons through our voluntary decisions—to sign the contract or swear the oath; to form the institutions and give the orders. They are therefore additional moral reasons, on top of the reasons that we have prior to those voluntary decisions. Simply because they are additional, these reasons seem limited in force and scope. In particular, they arguably cannot override pre-existing commitments. For example, if I already have a duty not to kill an innocent person, my promising to breach that duty seems irrelevant to whether doing so is permissible. Similarly for orders issued by legitimate states: the citizens of a legitimate state have pre-existing moral reasons not to kill the innocent; by what alchemy could their state's orders allow combatants to override those reasons? If additional reasons could make prohibited acts permissible, as Sidgwick observed, ‘we could evade any moral obligation by promising not to fulfil it, which is clearly absurd’ (Sidgwick 1981). -/- We might conclude that the contracts soldiers sign, the oaths they take and the orders they receive have weight only when they pertain to acts that soldiers are already allowed to do. Perhaps these additional reasons can require actions that would otherwise be merely permissible, but they cannot license otherwise prohibited actions. If this is right, then it radically limits the relevance of contracts, oaths and authority to the ethics of war, since almost all conflicts involve soldiers breaching some pre-existing moral duties. -/- This is obviously true for soldiers fighting on the unjust side in a war, since almost all the killing they do is unjust. But in all actual wars soldiers on the just side also kill at least some innocent victims, whether as part of an unjust subordinate aim, as ‘collateral damage’, or simply because their adversaries are not sufficiently responsible for unjustified threats to be liable to be killed. If additional reasons cannot make otherwise prohibited acts permissible, then they are practically irrelevant to the ethics of killing in war, at least in this sense: if fighting is impermissible without regard to the contract, oath and authority of their state, then fighting is simply impermissible. -/- This is a tempting conclusion. In this paper, however, I argue that even if it is true at the level of objective permissibility, it is false for subjective permissibility. And since subjective permissibility is where (at least some of) the action is in the ethics of war, this is a significant result. I explain first why additional reasons can make otherwise subjectively prohibited acts permissible, then why just war theorists should care more than they seem to about subjective permissibility. Although I focus throughout on the ethics of war, my arguments generalise to all kinds of additional reasons. (shrink)

In order to form a contract at least one of the parties to the bargain must give an undertaking or commitment of the appropriate kind to the other; that is, she must perform a commissive speech act of the right kind. It is widely assumed that the speech act in question is a promise. Indeed it is standard textbook fare that a contract is a promise (or an exchange of promises) that the law will enforce. This assumption underlies (...) the venerable tradition in contract theory of arguing that the morality of promise-keeping bears or ought to bear importantly on the content of the law of contract. In this paper I argue that this assumption is false. By way of a critical examination of Seana Shiffrin's impressive recent contribution to this theoretical tradition, I argue that the commissive speech act by means of which a contract is formed is not the same speech act as that by means of which we voluntarily undertake moral obligations to others. (shrink)

Expect for formal contracts, there are informally unwritten psychological contracts in the relationship between buyer and supplier for construction projects. The PC can affect the construction project performance and even cause project failure, but its process and formation are complex and not comprehensive in existing researches. This paper analyzes the PC between buyer and supplier by using evolutionary game and repeated game to tackle this gap. The results show the following: the goodwill and interest have an important impact on (...) PC fulfillment. The PC is vulnerable; for example, once either one fails to perform PC, the other will also destroy PC, and then the construction project will enter a vicious circle. In the process of repeated game, the effect of goodwill will gradually disappear, and the interest will play a major role. If the project performance is only linked to one participant, it will lead to breach from another player. Some measures may help both sides to complete PC, such as making both sides profitable, increasing the emphasis on business reputation, and improving the relevance of construction projects performance. (shrink)

With increasing market competition and rapid development of service economy, more and more enterprises are shifting from providing products or services to providing product-service systems that integrate products and services, in order to improve competitiveness and profitability. Meanwhile, consumers have strategic delayed purchasing behavior when purchasing the PSS and high requirements for service quality. This paper investigates the two-period pricing and service quality decisions of product-service supply chain considering consumers’ strategic behavior under decentralized and centralized scenarios. The equilibrium results are (...) compared in two scenarios. In order to eliminate performance loss under the decentralized scenario, we design two-period dynamic contracts to coordinate the PSSC. Furthermore, numerical simulation is provided to verify the feasibility of the contracts. The following conclusions can be drawn: the higher the service input-efficiency, the more beneficial for alleviating consumers’ strategic purchase behavior under two scenarios, but this mitigation effect is more obvious under the centralized scenario. Compared with the centralized scenario, the service quality is lower, the two-period PSS sales prices are higher, and the two-period profit is lower under the decentralized scenario. The proportion of service valuation will promote the widening of the service quality gap under two scenarios, but in some cases, the service input-efficiency will weaken the promotion effect of the proportion of service valuation. The design of the two-period combined contracts depends on the proportion of service valuation. When the proportion of service valuation is high, the “two-period revenue sharing + service-cost sharing” combined dynamic contract can achieve PSSC perfect coordination. However, when the proportion of service valuation is low, it is necessary to design complexity combined dynamic contract which can achieve PSSC perfect coordination. (shrink)

Multiple contraction (simultaneous contraction by several sentences) and iterated contraction are investigated in the framework of specified meet contraction (s.m.c.) that is extended for this purpose. Multiple contraction is axiomatized, and so is finitely multiple contraction (contraction by a finite set of sentences). Two ways to reduce finitely multiple contraction to contraction by single sentences are introduced. The reduced operations are axiomatically characterized and their properties are investigated. Furthermore, it is shown how iterated contraction can be reduced to single-step, single-sentence (...) contraction. However, in this framework the outcome of iterated contraction depends unavoidably on the order in which the inputs are received. This order-dependence makes it impossible to treat two inputs on an equal footing. Therefore it is often preferable to perform changes involving several pieces of information as multiple rather than iterated change. (shrink)

The U.S. Court of Appeals for the Third Circuit held, in Brader v. Allegheny General Hospital, 167 E3d 832, that the Health Care Quality Improvement Act, 42 U.S.C. §§ 11101-11152, shields a Pennsylvania hospital from a surgeon's claims of contract violations.The plaintiff, Alan Brader, M.D., joined Allegheny General Hospital's provisional medical staff in July 1988. During the next two years, he performed several abdominal aortic aneurysm repairs and various other operations. Several of Brader's patients sustained serious injuries or died (...) during surgery from complications. In 1989, Brader's supervisors, Drs. Daniel Diamond and George Magovern, met to discuss their dissatisfaction with Brader's behavior, his departures from hospital protocol, as well as his disruptive presence in the hospital. From 1989 to 1990, Brader continued to perform surgical procedures on incoming patients, and he continued to violate hospital notification protocol and lost a patient during surgery. In spring 1990, the Quality Assurance Department compiled data on AAA procedures for the hospital's physicians. (shrink)

Termination in international contracts is considered a harsh sanction that harms international trade for each breach of contract or its provisions. The interest of international trade is fulfilled in maintaining and completing performance of contract, even if with a breach rectifiable by remedy. The termination destroys the contract and results in returning goods after their dispatch in addition to the accompanying new freight and insurance expenses and administrative and health procedures necessary for the entry and exit (...) of goods and to pay then refund the price. Moreover, the goods are exposed again to damage and perishing risks. Furthermore, the international sale contract is inherently associated with other international contracts such as goods transport contract, insurance contract and documentary credit through which the price is paid. If the sale contract is terminated, its effect will apply to all other associated contracts, if not performed, which produces many issues and hardships. (shrink)

Prior studies in business ethics highlight the role of philanthropy in shaping stakeholders’ perceptions of a firm’s underlying moral tendencies and values. Scholars argue that philanthropy-based character inferences influence whether and how stakeholders engage with firms. We extend this line of reasoning to examine the impact of philanthropy on firms’ contracting costs in the capital market. We posit that philanthropy-based character inferences reduce investors’ agency concerns, thereby reducing firms’ cost of capital. We also posit that the strength of the philanthropy–cost (...) of capital relationship is contingent on uncertainty regarding a firm’s character, visibility of a firm, and prevailing philanthropic norms. We test and find support for our arguments in a longitudinal study of philanthropy and the cost of capital. Our findings have implications for business ethics research on corporate philanthropy and corporate social performance and for organizational research on social judgment. (shrink)

This article explores the extent to which it is or may be possible to have a claim both in contract and in restitution. Restitution will almost never be appropriate before a valid contract has been discharged but after it has been discharged a restitutionary claim may be available as well as a contractual one. A restitutionary claim cannot, however, be used to set aside the contractual allocation of risks. It is argued that while in the past English courts (...) may have been too willing to conclude that restitution would be inconsistent with the allocation of risks, the view of those striving to show the independence of restitution that there will always be a restitutionary claim unless the contract, construed strictly against the party resisting restitution, has excluded it, goes too far in the opposite direction. The terms of the contract and its nature are of vital importance to the existence and extent of any restitutionary claim Apart from the question of express or implied exclusion by a contractual remedial regime which is a complete code, the contract determines both whether contractual rights are "conditional" and defensible or "unconditional", and whether the acts of the person against whom restitution is sought constitute part performance of the contract which will either bar a claim or for which the plaintiff will have to give credit. (shrink)

Economic change, globalisation and harmonisation of European Law have brought new challenges to contract law. The contributions in this Volume by prominent legal scholars deal with current trends and perspectives in European and International Contract Law and their impact on the various domestic legal systems. The Compendium provides an analysis of new developments in formation of contract, performance and remedies, consumer contract law and the particularly controversial area of anti-discrimination law. Experts in their field examine (...) the underlying legal principles and problems arising in legal practice in Common Law and Civil Law. The essays written in English, German and French are the product of a series of lectures held in 2006 at the Centre for European Private Law at the University of Münster, Germany. The contributing authors are: John Adams, Hugh Beale, Giuditta Cordero-Moss, Barbara Dauner-Lieb, Michele Graziadei, Thomas Gutmann, Geraint Howells, Simon James, Paul Lagarde, Matthias Lehmann, Peter Møgelvang-Hansen, Salvatore Patti, Thomas Pfeiffer, John C. Reitz, Judith Rochfeld, Martin Schmidt-Kessel, Jürgen Schmidt-Räntsch, Alessandro Somma, Stefano Troiano, Christian Twigg-Flesner, Antoni Vaquer Aloy and Fryderyk Zoll. (shrink)

The problem of knowledge evolution has received considerable attention over the years. Mainly, the study of the dynamics of knowledge has been addressed in the area of Belief Revision, a field emerging as the convergence of the efforts in Philosophy, Logic, and more recently Computer Science, where research efforts usually involve “flat” knowledge bases where there is no additional information about the formulas stored in it. Even when this may be a good fit for particular applications, in many real-world scenarios (...) different information items may be attached to formulas. For instance, when the reliability of the source of the piece of information is attached to it as a measure of some quality (e.g., strength) of the piece of information itself, or when some characteristic informs us on the desirability of the item (e.g., the potential benefit that could be obtained from it). If this type of information is available, we can use it to guide how the belief base is to be modified when new information arrives. In this work, we present a novel approach to the contraction of knowledge bases where formulas have values attached that measure some quality linked to those formulas, exploiting it to define their desirability, and uses such desirability to define which formulas need to be removed to solve conflicts. In this context, we introduce a set of properties for contraction operators by extending classic approaches. We also show how the local treatment of minimal conflicts can induce some counter-intuitive contractions, and we present a way to avoid them by considering optimal resolutions of conflicts using the additional information encoded. We show how the proposed formalization captures any contraction that is optimal under a set of features. Finally, we present a refinement based on the identification of related minimal conflicts that performs contraction in optimal ways without looking into the entire knowledge base. The approach is based on the use of the accrual of beliefs where several formulas collaboratively use their respective values to prevail in the resolution of conflicts. (shrink)

In recent years, the microfinance industry has received a substantial amount of cross-border funding from both public and private sources. This funding reflects the increasing interest in microfinance as part of a more general trend towards socially responsible investments. In order to be able to secure sustained interest from these investors, it is important that the microfinance industry can show evidence of its contribution to reducing poverty at the bottom of the pyramid. For this, it is crucial to understand under (...) what conditions microfinance institutions are able to reduce poverty. This paper contributes to this discussion by investigating the relationship between the extent to which social capital formation is facilitated within different societies and the financial and social performance of MFIs. This focus on social capital formation is important, because in many cases MFIs use group loans with joint liability to incentivize asset-poor borrowers to substitute the lack of physical collateral by their social capital. Hence, the success of a large part of the loan relationship between MFIs and their borrowers depends on the social capital those borrowers can bring into the contract. We carry out a cross-country analysis on a dataset containing 100 countries and identify different social dimensions as proxies for how easy social capital can be developed in different countries. We hypothesize that microfinance is more successful, both in terms of their financial and social aims, in societies that are more conducive to the development of social capital. Our empirical results support our hypothesis. (shrink)

Banks play a unique role in society. They not only maximize profits but also consider the interests of stakeholders. We investigate whether banks consider firms’ pollution records in their lending decisions. The evidence shows that banks offer significantly higher loan spreads, higher total borrowing costs, shorter loan maturities, and greater collateral to firms with higher levels of chemical pollution. The costly effects are stronger for borrowers with greater risk and weaker corporate governance. Further, the results show that banks with higher (...) social responsibility account for their borrowers’ environmental performance and charge higher loan spreads to those with poor performance. These results support the idea that banks with higher social responsibility can promote the practice of business ethics in firms. (shrink)

ObjectivesBuilding on what is known about the non-random nature of crime problems and the explanatory capacity of opportunity theories of crime, this study explores the utility of using existing university administrative data to detect unusual patterns of performance consistent with a student having engaged in contract cheating (paying a third-party to produce unsupervised work on their behalf).MethodsResults from an Australian university were analysed (N = 3798 results, N = 1459 students). Performances on unsupervised and supervised assessment items were (...) converted to percentages and percentage point differences analysed at the academic discipline-, unit-, and student-level, looking for non-random patterns of unusually large differences.ResultsNon-random, unusual patterns, consistent with contract cheating, were found at the academic discipline-, unit-, and student-level, with approximately 2.1% of students producing multiple unusual patterns.ConclusionsThese findings suggest it may be possible to use existing administrative data to identify assessment items that provide suitable opportunities for contract cheating. This approach could be used in conjunction with targeted problem-prevention strategies (based on situational crime prevention) to reduce the vulnerability of academic assessment items to contract cheating. This approach is worthy of additional research as it has the potential to help academic institutions around the world manage contract cheating; a problem that currently threatens the validity and integrity of tertiary qualifications. (shrink)

ABSTRACT This article provides a criticism of the apolitical starting point of social contract theories through the analysis of Rawls's original position and Habermas's idea of complex society, arguing that such depoliticized starting point leads to the refusal of the centrality of social struggles between classes as the basis of streamlining social evolution and institutional constitution. In order to achieve political agreement, it erases and even eliminates the struggles between social classes, the status quo and the social-political differences between (...) social groups as the core of societal and institutional configuration. Moreover, it leads to strong institutionalism-the centrality of the formal spheres and subjects in relation to informal spheres and subjects. Therefore, the political consequences of a depoliticized or apolitical starting point are threefold: the depoliticization of social struggles between opposed social classes, the strong institutionalism by the emphasis in the depoliticized institutions and in the rule of law, and the weakening of a democratic political praxis performed by social movements and citizen initiatives from a direct contraposition and even substitution of the institutions, their proceduralism and legal staff with the spontaneous politicalcultural praxis of these social movements and citizen initiatives. The great problem and challenge of contemporary democratic societies, namely the correlation between strong institutionalism, political parties and economic oligarchies, cannot be resolved from the juridical-political procedural paradigm's emphasis on institutionalism and the rule of law, but only by a reaffirmation of political praxis as the fundamental core of institutional and societal constitution, legitimation and evolution, which implies that democratic politics must be conceived of as a permanent struggle against strong institutionalism by the political subjects of civil society. Here a permanent and radical politicization of the informal public spheres and subjects is required. RESUMO Critico no artigo, a partir da análise da posição original de Rawls e da ideia de sociedade complexa de Habermas, o ponto de partida não político das teorias do contrato social, argumentando que este mesmo ponto de partida despolitizado leva - no momento em que apaga e mesmo elimina, com o objetivo de alcançar o acordo político, as lutas sociais entre classes, o status quo e as diferenças sociopolíticas entre os grupos sociais como a base da configuração institucional e societal - à recusa da centralidade das lutas sociais entre classes como a base de dinamização da evolução social e da constituição institucional. Ele leva, além disso, ao institucionalismo forte, isto é, à centralidade das esferas e dos sujeitos formais em relação às esferas e sujeitos informais. Portanto, as consequências políticas de um ponto de partida não político ou despolitizado são triplas: a despolitização das lutas sociais entre classes sociais opostas; o institucionalismo forte por meio da ênfase em instituições políticas e no Estado democrático de direito despolitizados; e o enfraquecimento de uma práxis política radical que é realizada por movimentos sociais e iniciativas cidadãs a partir de uma contraposição direta e mesmo de uma substituição das instituições, de seu procedimentalismo e elites pela práxis político-cultural espontânea dos movimentos sociais e das iniciativas cidadãs. O grande problema e o grande desafio das sociedades democráticas contemporâneas, ou seja, a correlação entre institucionalismo forte, partidos políticos e oligarquias econômicas, não podem ser resolvidos por meio da ênfase, por parte do paradigma jurídico-político procedimentalista, no institucionalismo e no Estado Democrático de Direito, senão que apenas por meio de uma reafirmação da práxis política como o verdadeiro núcleo da constituição, legitimação e evolução institucional e societal, o que implica que a política democrática seja concebida como luta permanente em relação ao institucionalismo forte por parte dos sujeitos políticos advenientes da sociedade civil, exigindo-se, aqui, uma politização permanente e radical das esferas públicas e dos sujeitos informais. (shrink)

The article deals with the issue of initial impossibility of performance of an obligation and the influence of such impossibility of performance on the validity of the legal transaction that establishes such an obligation. The legal doctrine convincingly demonstrates that for Roman lawyers the rule Impossitionbilium nulla obligatio est merely meant that nobody can be obliged to perform something that cannot be performed; however, it did not necessarily follow that a contract establishing such an obligation was void. (...) Modern civil codifications overlook another significant feature of the Roman law – the uncontested application of the principle Impossibilium nulla obligatio est only in case of stipulatio, whereas modern contract law has its origins in the Roman law of consensual contracts. (shrink)

This paper examines the effectiveness of the use of executive compensation linked to Corporate Social Responsibility (CSR) goals across US firms. Empirical analysis of a cross-industry sample of 746 listed companies for the period 2002–2013 showed that the use of CSR-linked compensation contracts for Named Executive Officers (NEOs) promotes CSR performance. More specifically, we found that linking NEOs’ compensation to CSR goals produces positive effects in the 3rd year after adoption. As firms accumulate experience and learn how to use (...) the system over the following eight periods, CSR performance increases monotonically. Furthermore, experience accumulated over time affects the different specifications of CSR performance asymmetrically, by reducing both environmental and social CSR concerns and increasing only environmental CSR strengths. Interestingly, we also found that the simultaneous use of other CSR-focused governance systems moderates the effect of a firm’s accumulated experience in using CSR-linked executive compensation on CSR performance: the existence of a CSR committee at the board level and the public release of a CSR report are likely to have a positive moderating effect, while the purchase of a CSR audit has no moderating effect. (shrink)

In psychological contract research, the side of the supervisor is strongly underexposed. However, supervisors are responsible for maintaining relationships with both their subordinates and senior management and are likely to be influenced by events unfolding in these relationships. In this study, we state that supervisor well-being may be affected by subordinates who fail to meet their obligations. This study adds to psychological contract research by developing an understanding of how and when subordinate psychological contract breach (PCB) is (...) associated with supervisor emotional exhaustion. Through a weekly diary survey among 56 Dutch supervisors, we test hypotheses about the relationships between subordinate PCB and the emotional exhaustion of the supervisor, the mediating role of perceptions of performance pressure by the supervisor in this relationship, and the moderating role of i-deals between the supervisor and senior management. Multilevel analyses support the first two hypotheses, but contradictory to our expectations show that the positive association between subordinate PCB and the emotional exhaustion of the supervisor is strengthened when the supervisor has high levels of i-deals with senior management. We discuss the findings in relation to their contribution to psychological contract theory. (shrink)

Behavioral psychology is increasingly important in relationship marketing. As key factors of emotional interactions between buyer and seller, psychological contracts and opportunistic behaviors play a critical role in interorganizational relationships which are based on personal relationships of boundary spanners and top management. Most of the existing research mainly focus on positive performance of cooperation but ignoring the dark side of relationships. This study introduces the psychological contract into the exploration of why formal contracts cannot completely avoid opportunistic behaviors. (...) It mainly investigates whether psychological contracts in relationships can reduce the occurrence of opportunistic behaviors. The results show that psychological contract has a significant positive effect on the relationship quality, and negatively affect opportunistic behavior through trust and commitment. The positive relationship between psychological contracts and relationship quality is moderated by dependence. This study enriches and expands the domestic and foreign research on psychological contracts and opportunistic behaviors in relationship marketing. (shrink)

COVID-19 has had a huge impact on workers and workplaces across the world while putting regular work practices into disarray. Apart from the obvious effects of COVID-19, the pandemic is anticipated to have a variety of social–psychological, health-related, and economic implications for individuals at work. Despite extensive research on psychological contracts and knowledge sharing, these domains of pedagogic endeavor have received relatively little attention in the context of employee creativity subjected to the boundary conditions of the organization’s socialization and work-related (...) curiosity. This study investigates, empirically, the role of psychological contracts in escalating employee creativity through knowledge sharing by considering the moderating role of an organization’s socialization and work-related curiosity. The response received from 372 employees of the manufacturing sector has been investigated and analyzed through Smart PLS software. The results have revealed that knowledge sharing is mediating the relationship between psychological contract and employee creative performance, whereas the moderators significantly moderate the relationships between psychological contract and knowledge sharing and between knowledge sharing and employee creative performance accordingly. It has also been depicted that the moderating impact shown by both moderators is significantly high. (shrink)

Drawing on theories of social exchange and social information processing, we examined whether the influence of psychological contract breach on in-role performance and organization-directed citizenship behavior (OCBO) depends work group climate levels, specifically procedural justice climate and power distance climate. The findings supported our hypothesis that psychological contract breach exhibits a stronger influence on in-role performance and OCBO among members of units with favorable procedural justice climates. Support for a hypothesized moderating role of power distance climate (...) was less conclusive. We discuss the implications of our model and findings for theories of employee-organization relationships and practice. (shrink)

Austin's ?doctrine of the infelicities?, whereby performative utterances are vulnerable to the risk of failure, has been criticized for treating such a possibility as contingent rather than as necessary (and hence revelatory of the essential nature of speech acts). This paper seeks to trace out what is at stake for one who maintains Austin's position. It examines Austin's curious hypothetical history of the development of speech acts, which is found to resemble forms of social?contract theory, and the problem with (...) this hypothetical history is shown to be that it presupposes as original the very properties that it sets out to explain. The argument is then made that Austin's technicalization of the conditions and context of speech acts displaces our attention from the deeper issue that both speech?act and contract theory are versions of a concern with making social action transparent, and both raise the perennial (and insoluble) problem of trust in human affairs. (shrink)

Speech Act Theory has proved useful for classifying utterances, because of its seemingly universal application; on the other hand, legal theorists are interested in speech acts for several reasons, the most important being the fact that the theory helps to explain how the law uses language. In legal language there is a large number of speech acts, and most of them fall under the category of performatives: these do not report about doing something, their utterance actually constitutes performing an action. (...) Because performatives are actions, they cannot be considered to be either true or false but only “felicitous” or “infelicitous". Laws could be considered as types of speech acts, as well as contracts and wills. We can say that in, a very general way, speech act theory is helpful because it permits us to understand legal events from a new perspective: in this paper my attempt is to show that a difference exists between "doing something with words" and "doing something legal with words", and that doing something in speaking in the common language is different from doing it in speaking the legal discourse, since in the legal domain we do not speak to do speech acts, but to carry out legal acts. (shrink)

The shriek modality \s! of linear logic performs two tasks: it restores in annotated from both weakening and contraction. We separate these tasks by introducing two modalities: for weakening and for contraction. These give rise to two logics which are “inbetween” linear and intuitionistic logic: in affine logic one always has a weakening and a for contraction and in relevant logic one always has a contraction and a weakening. The semantics of these logics is obtained from special kinds of monads, (...) introduced by Anders Kock in the early seventies. As subtle point is how to retrieve the \s! of linear logic from and . Technically this will be achieved in terms of distributive laws—introduced by Jon Beck. We find models where one has \s! = and also models with \s! = . It will be shown that on the category of complete lattices one has comonads and with = \s!=. (shrink)

Within a laboratory experiment we investigate a principal-agent game in which agents may, first, self-select into a group task (GT) or an individual task (IT) and, second, choose work effort. In their choices of task and effort the agents have to consider pay contracts for both tasks as offered by the principal. The rational solution of the game implies that contract design may not induce agents to select GT and provide positive effort in GT. Furthermore it predicts equal behavior (...) of agents with different productivities. In contrast, considerations of trust, reciprocity and cooperation – the social-emotional model of behavior – suggest that contract design can influence the agents’ willingness to join groups and provide effort. We analyze the data by applying a two-step regression model (multinomial logit and tobit) and find that counter to the rational solution, contract design does influence both, task selection and effort choice. The principal can increase participation in work groups and can positively influence group performance. Larger payment increases the share of socially motivated agents in work groups. The selection effect is larger than the motivation effect. (shrink)

In this article we examine the role which vindication plays in contract damages. Vindication describes the making good of a right by the award of an adequate remedy. We argue that, while the primary purpose of compensation is to provide an indemnity for loss, an award of compensatory damages will nevertheless generally vindicate the right to performance of the contract. We go on to consider a distinct measure of damages, vindicatory damages. These, we argue, are neither compensatory (...) nor restitutionary, neither loss-based nor gain-based: they are a rights-based remedy. We then identify various situations in which the courts may be seen to have awarded what are, in substance, vindicatory damages. We conclude by considering the benefits which may follow from recognition of the availability of vindicatory damages as a contract remedy. (shrink)

This study examines the apparently well-established rule that the equitable doctrine of conversion operates on a contract to grant an interest only so long as it is specifically enforceable. It observes that in principle and in practice there is good reason to believe this not to be the case. It looks at the original culture of conversion, in terms of the historical relationship of property and contract from which it emerged, but suggests that the specific enforceability rule first (...) arose out of the narrowness of the original availability of common injunctions. But when, in the late nineteenth century, common injunctions began to lie more expansively and the rule could have been discarded, it was in fact preserved, and indeed insisted upon. It is suggested that this was because adherence to the old narrow view on common injunctions and to its concomitant, the specific enforceability rule in estate contracts, served the purposes of the Chancery lawyers who were contemporaneously adopting a restrictive attitude to the effects of the Judicature Acts 1873–5, by emphasizing the distinctiveness of equitable institutions. However, such views were not a doctrinally necessary consequence of that attitude, and, given the a priori unsuitability of the specific performance rule, there seems no reason why it should not nowadays be regarded as obsolete. But the lessons which equity had thus had to learn by experience can usefully be extrapolated into conclusions of more general applicability for legal development. (shrink)

It is natural to wonder about contract law’s relationship to the morality of promises and agreements. This Chapter distinguishes two ways to conceive of that relationship. First, parties’ agreement-based moral obligations might figure into the explanation of contract law—into an account of its functions or justifications. Contract law might serve to enforce parties’ first-order performance obligations, to enforce second-order remedial obligations, to support the culture of making and keeping agreements more generally, or at least to do (...) no harm to that culture or to people’s ability to act morally. Second, contract can be understood as the legal analog to promise. Both contract and promise enable people to undertake new obligations to one another when they wish. Each is a type of normative power, the one legal, the other moral. The Chapter concludes by arguing that these two ways of thinking about contract law are not mutually exclusive. Contract law both imposes on parties to exchange agreements a legal obligation to perform for reasons independent of the parties’ possible contractual intent, and confers on them the power to undertake that legal obligation when they so intend because they so intend. (shrink)

The paper deals with Forward exchange contracts and Swap exchange contracts, These two types of contracts are among the most prominent types of financial derivative contracts that arose after the collapse of the Bretton Woods system in 1971 or the so-called Nixon shock, where the convertibility of the dollar into gold was stoped, which led to turmoil in the exchange rates of the currencies of many countries and the emergence of the need to stabilize the exchange rate Currencies in transactions (...) where the delivery of the two exchanges is delayed. This research has studied forward exchange contracts and swap exchange contracts in four sections. The first section defines the Forward exchange contract, which is a contract in which the two parties commit to exchange a specified amount of foreign currencies on a forward date, at a price agreed upon in advance. The elements and elements that must be mentioned in this contract, such as the seller and buyer, the size of the contract, the date of delivery and the forward exchange rate, were mentioned in this section, with an illustrative example of the mechanism of conducting this contract. In addition to addressing the differences between forward exchange contracts and future exchange contracts, the characteristics of forward exchange contracts and the purposes of those dealing with them from hedging and speculation are mentioned in this section. The second section has been devoted to the definition of swap exchange contracts, it is for the two parties to the contract to agree that one of them buys from the other a specific amount of a currency in exchange for a specific amount of another currency and at the current exchange rate, provided that the two exchanges are delivered immediately, and in the same contract, the two parties agree to make a forward reverse exchange contract, at a price determined within Contract, and to clarify the picture of swap exchange contracts, an example has been given to illustrate the mechanism for conducting this type of contract. In the third section, the views of contemporaries scholars regarding the İslamic law of the forward exchange contract were discussed, where the opinion of the objectors was mentioned at all and the evidence they inferred from it. And then the opinion of those who advocate the permissibility of forward exchange contracts that are in the form of a dating that is not binding on both parties together, provided that there is nothing in the dating that indicates that it is a contract of sale and provided that a new contract is delivered independent of the dating. Then I discussed the opinion and evidence of the impediments in four points, and I concluded that the most correct opinion at the first is the impermissibility of the forward exchange contract in the form such as the traditional banks do it because of the deception it contains. But I recanted and permitted this type of contract in two cases, the first: the case of need with the absence of an alternative, and the second: the case that transaction is not binding dating for both parties and on some terms. Some contemporary scholars suggested conducting buying and selling operations in the same currency as an alternative to forward exchange contracts, and some of them suggested that Islamic banks should have a common unit of account to settle accounts between the parties to commercial transactions. But in my opinion two solutions are often not feasible. As for the fourth section, I dealt with the opinions of contemporary scholars in the swap exchange contract. it seems likely to me that swap currency exchange contracts are nothing but a usurious loan that is prohibited by Sharia. Because when examining the mechanism of conducting this type of contract, it turns out that one of the parties lent the other an amount in one currency in exchange for the other lending him an amount in another currency under the name of the spot exchange contract. Since one of the two parties requires the other to increase what he lent - if the exchange rate of the Forward exchange contract is different from the Spot exchange rate, which is predominant - under the name of the Forward exchange contract, then this process is nothing but a usurious loan. I supported the proposal to exchange loans in different currencies as a İslamic alternative to transaction contracts, provided that there is no preference for one party over another, and there is no usurious increase. And in order to solve the problem of the high rate of currency inflation of one of the two loans more than the other, the researcher suggested adding the inflation rate to the two loans when they are performed. (shrink)