Top PDF Contract Doctrine, Theory & Practice - Volume 2

Contract Doctrine, Theory & Practice - Volume 2

Contract Doctrine, Theory & Practice - Volume 2

Industries, Inc., supra, 606 F.2d at 186. Otherwise there would be an acute danger that a party whose offer had been rejected would nevertheless try to use it as the basis for a suit. The second case is that of notes made in preparation for a negotiating session, and this is another plausible case for holding the statute unsatisfied, lest a breakdown of contract negotiations become the launching pad for a suit on an alleged oral contract. Third is the case—arguably this case— where the precontractual writing—the Schneider memo and the attachment to it—indicates the promisor's (Anchor Hocking's) acceptance of the promisee's (Monetti's) offer; the case, in other words, where all the essential terms are stated in the writing and the only problem is that the writing was prepared before the contract became final. The only difficulty with holding that such a writing satisfies the statute of frauds is the use of the perfect tense by the draftsmen of the Uniform Commercial Code: the writing must be sufficient to demonstrate that “a contract for sale has been made.... The ‘futuristic’ nature of the writing disqualifies it.” Micromedia v. Automated Broadcast Controls, 799 F.2d 230, 234 (5th Cir.1986) (emphasis in original); see also American Web Press, Inc. v. Harris Corp., 596 F. Supp. 1089, 1093 (D.Colo.1983). Yet under a general statute of frauds, “it is well settled that a memorandum satisfying the Statute may be made before the contract is concluded.” Farrow v. Cahill, 663 F.2d 201, 209 (D.C.Cir.1980) (footnote omitted). And while merely because the UCC's draftsmen relaxed one requirement of the statute of frauds-that there be a writing containing all the essential terms of the contract— doesn't exclude the possibility that they wanted to stiffen another, by excluding writings made before the contract itself was made, the choice of tenses is weak evidence. No doubt they had in mind, as the typical case to be governed by section 2-201, a deal made over the phone and evidenced by a confirmation slip. They may not have foreseen a case like the present, or provided for it. The distinction between what is assumed and what is prescribed is critical in interpretation generally.
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Contract Doctrine, Theory & Practice - Volume 3

Contract Doctrine, Theory & Practice - Volume 3

be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract. For, had the special circumstances been known, the parties might have specially provided for the breach of contract by special terms as to the damages in that case; and of this advantage it would be very unjust to deprive them. Now the above principles are those by which we think the jury ought to be guided in estimating the damages arising out of any breach of contract. It is said, that other cases such as breaches of contract in the nonpayment of money, or in the not making a good title of land, are to be treated as exceptions from this, and as governed by a conventional rule. But as, in such cases, both parties must be supposed to be cognizant of that well-known rule, these cases may, we think, be more properly classed under the rule above enunciated as to cases under known special circumstances, because there both parties may reasonably be presumed to contemplate the estimation of the amount of damages according to the conventional rule. Now, in the present case, if we are to apply the principles above laid down, we find that the only circumstances here communicated by the plaintiffs to the defendants at the time of the contract was made, were, that the article to be carried was the broken shaft of a mill, and that the plaintiffs were the millers of the mill.
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Contract Doctrine, Theory & Practice - Volume 1

Contract Doctrine, Theory & Practice - Volume 1

[25] However, the important distinction between Feinberg and the case before us is that in Feinberg the employer's decision definitely shaped the thinking of the plaintiff. In this case the promise did not. It is not reasonable to infer from the facts that Hugo R. Mainelli, Jr., expected retirement to result from his conversation with Hayes. Hayes had given notice of his intention seven months previously. Here there was thus no inducement to retire which would satisfy the demands of § 90 of the Restatement. Nor can it be said that Hayes's refraining from other employment was “action or forbearance of a definite and substantial character.” The underlying assumption of Hayes's initial decision to retire was that upon leaving the defendant's employ, he would no longer work. It is impossible to say that he changed his position any more so because of what Mainelli had told him in light of his own initial decision. These circumstances do not lead to a conclusion that injustice can be avoided only by enforcement of Plantations's promise. Hayes received $20,000 over the course of four years. He inquired each year about whether he could expect a check for the following year. Obviously, there was no absolute certainty on his part that the pension would continue. Furthermore, in the face of his uncertainty, the mere fact that payment for several years did occur is insufficient by itself to meet the requirements of reliance under the doctrine of promissory estoppel.
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A Theory of Literate Action: Literate Action Volume 2

A Theory of Literate Action: Literate Action Volume 2

We can see how these issues come together in considering perhaps the most well-known of Vygotskian concepts—the Zone of Proximal Development (often called ZPD). In his writings he articulates the concept most clearly in relation to assessing a child’s capacity for learning. He states the most important thing to measure is not what the child can do by him or herself (say, in the traditional paper and pencil IQ or achievement test) but in measuring those things that the child can do with assistance of an adult or more skilled peer. This identifies the area of learning a child can engage in leading to development (Vygotsky, 1978, Chapter 6). This ZPD identifies activities where students can enter into novel or challenging collaborations, guided or regulated by the speech or other actions of the more skilled other—speech and actions that can then go from interpersonal regulation to intrapersonal regulation. In this way the child can learn new practices, principles, concepts, and activities which later he or she may be able to carry on by him or herself and ultimately internalize within his or her cognitive repertoire. Further, at some point the elements learned within the ZPD reorganize and coalesce into a new functional system, changing the relations and functions of the previously acquired parts, reorganizing perception, reasoning, and activities. This transformation to a new form of thinking which reorganizes previous ones constitutes development, in contrast to learning. For this reason Vygotsky says learning leads development (Vygotsky, 1986). This process of reorganization based on conceptual development (in Hegelian terms called sublation or aufhebung) provides a way that both genres and mentorship can induct one into specialized forms of perception, reasoning, and practice, such as those associated with scientific and academic reasoning, as well as professional practice (See Bazerman 2009, 2012).
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A Theory of Literate Action: Literate Action Volume 2

A Theory of Literate Action: Literate Action Volume 2

We can see how these issues come together in considering perhaps the most well-known of Vygotskian concepts—the Zone of Proximal Development (often called ZPD). In his writings he articulates the concept most clearly in relation to assessing a child’s capacity for learning. He states the most important thing to measure is not what the child can do by him or herself (say, in the traditional paper and pencil IQ or achievement test) but in measuring those things that the child can do with assistance of an adult or more skilled peer. This identifies the area of learning a child can engage in leading to development (Vygotsky, 1978, Chapter 6). This ZPD identifies activities where students can enter into novel or challenging collaborations, guided or regulated by the speech or other actions of the more skilled other—speech and actions that can then go from interpersonal regulation to intrapersonal regulation. In this way the child can learn new practices, principles, concepts, and activities which later he or she may be able to carry on by him or herself and ultimately internalize within his or her cognitive repertoire. Further, at some point the elements learned within the ZPD reorganize and coalesce into a new functional system, changing the relations and functions of the previously acquired parts, reorganizing perception, reasoning, and activities. This transformation to a new form of thinking which reorganizes previous ones constitutes development, in contrast to learning. For this reason Vygotsky says learning leads development (Vygotsky, 1986). This process of reorganization based on conceptual development (in Hegelian terms called sublation or aufhebung) provides a way that both genres and mentorship can induct one into specialized forms of perception, reasoning, and practice, such as those associated with scientific and academic reasoning, as well as professional practice (See Bazerman 2009, 2012).
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Topics in optimal liquidation and contract theory

Topics in optimal liquidation and contract theory

Consider a stock with average daily volume 2 × 10 6 . Suppose the investor wants to liqui- date a position of 2 × 10 5 3 of this stock. Figure 1.1 gives out optimal liquidation trajectories in both VG L´ evy process case and Brownian motion case when the risk aversion parameter A takes values of 10 −6 , 10 −5 and 10 −4 4 . We see that when A = 10 −6 , optimal strategies for two models are almost identical. As A increases, optimal speeds increase in both models, and in particular, speeds increase much faster in VG model for big positions. In each case, liqui- dation finishes in a short time period, which confirms that the linear approximation scheme of exponential model is reasonable. Now we may make a conclusion that if one believes that the unaffected stock price follows an exponential VG L´ evy process and the temporary price impact is described by a 0.6 power-law, then optimal liquidation strategy for the Brownian motion model is suboptimal unless A is very small.
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The venture capital contract and the Institutional Theory in a Spanish setting

The venture capital contract and the Institutional Theory in a Spanish setting

Empirical evidence regarding the development of Institutional Theory as an instrument to understand the financial contracts in the venture capital industry is scarce. Suchman (1995) examines 108 financial contracts from two important venture capital funds in California´s Silicon Valley, during the period 1975-1990. They find that venture capital contracts become standardized over time due to normative isomorphism and that standardization declines with geographical distance from Silicon Valley. Later, in Sweden, the Institutional Theory supports the results provided by Isaksson et al. (2004). They find some differences between public and non-public venture capital firms that may result from the political pressures on public organizations. Private venture capitalists turn towards standardized covenants, whereas the public ones leant towards situational elements. Their results do not show many differences between the contractual choices made by more or less experienced venture capitalists. Finally, they find that early and late stage investors are two different organizational cultures controlling the design of contracts in these groups.
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Field Theory in Practice

Field Theory in Practice

We illustrate the method by a very simple example: a group of 56 persons, 55 students, one of them using a wheelchair and requiring personal assistance, evacuates a hall. We focus only on the last part of the evacuation namely the specific flow through the door and the flow on the area in front of the door. The width of the door amounts 1.09 m and we consider 2 m in front of. Because of the extension limit of this paper we omit a sketch but the Fig.1 may fill the gap: Imagine the door between the upper right corner, this is the point with the coordinates (2, 0), and the point (2, -1.09). From this point downwards to (2,-3) we have a wall. The upper horizontal axis should be seen as a wall. The remaining lines, from (0, 0) to (0,-3) and from this point to (2,-3) are open, inside of the hall. We choose the direction field of the differential equation y’=0.3x-y on the closed interval [0, 2] for the independent variable x and on [-3, 0.04] for y . The reason why is the geometry of this special part of the track: a relatively short non-linear path showing eventually high density. The exact solution of this equation is y = C𝑒𝑒 −𝑥𝑥 + 0.3𝑥𝑥 − 0.3, with
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Ventilation: Theory and Practice

Ventilation: Theory and Practice

The current technique of weaning from APRV is guided by general principles of weaning used in clinical practice today. Knowledge of the signs of respiratory failure, as well as exclu- sion or correction of contributing factors pre- venting successful weaning, such as excessive secretions, bronchospasm, sepsis, anxiety, and diameter of endotracheal tubes and other dead space devices, are paramount. The approach in APRV is to maintain lung volume, improving both oxygenation and ventilation. As such, rarely does a specific point in time occur when weaning is “officially” commenced.
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ELECTROCHEMISTRY. Theory and Practice

ELECTROCHEMISTRY. Theory and Practice

The system of pH indicating electrode, reference electrode, pH-meter and lab conditions (stirring / no stirring, thermostated / not thermostated, ambient air humidity / pressure, and so on) is calibrated by placing the electrodes in solutions of known pH (buffers) and measuring the voltage of the cell. Because the cell potential is a linear function of pH (usually in the range of pH 2-11), two calibration points (2 pH buffers) are needed. Most common is the calibration with the IUPAC buffers pH 4.005 and pH 10.012 (@ 25°C).

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Trading theory for practice

Trading theory for practice

dÛ %MUIQNMLEMSAKÛBEMEßSR through a reduction in the volume of licensed resource needed to maintain the supply- demand balance and carbon reductions. In completing the project, we have assumed that investment plans for AMP5 have been committed AMDÞVIKKÞDEKIUEQÞSHEÞARRTLEDÞBEMEâSRÞAMDÞSHASÞSHEÞ current trading arrangements between Anglian 7ASEQÞAMDÞ6ENKIAÞ7ASEQÞ%ARSÞVIKKÞBEÞEWSEMDEDÞ where appropriate. Similarly, we have excluded the 5+#0ÞNTSOTSRÞFTSTQEÞRTRSAIMABIKISXÞQEDTCSINMRÞ and bulk transfer charges. Additional details about exclusions from the scope are given in Appendix 1.
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Codetermination in Theory and Practice

Codetermination in Theory and Practice

That, coupled with the absence of corporate boards with employee representatives in the United States, is viewed by the scholars as proof positive that their theoretical ar[r]

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PRACTICE THEORY TEST

PRACTICE THEORY TEST

WRITE the name of each major and relative minor key signature on the line below the staff.. To complete the Circle of 5ths, WRITE the name of each major key on the correct line.[r]

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To the theory and practice of psychosomatics

To the theory and practice of psychosomatics

Current  status  of relationship between  somatic medicine and  an  oriented  to  the  work  with  somatic  area  of  psychotherapy  (psychology)  can  be  largely  associated  with  confrontation  than  cooperation. From  the  one hand,  there are  undeniable  successes  of  medicine  which  based  on  findings  of  such  «materialistic»  sciences  as  physics,  biomechanics,  biochemistry,  microbiology,  physiology  etc.,  has  learned  to  effectively  fight  against  various  human  body  diseases.  Despite  clear  declining  «rates  of  effectiveness  growth»  in  the  recent  decades,  the  medicine  in  general  feels  self‐sufficient  in the  theory  and  practice  of  medical  treatment. On the other hand, developing psychosomatic methods  give  us  a  fair  number  of  healings  from  various  diseases  even  considered  as  incurable  at  the  state‐on‐the‐art  level  of  medical  science  [1,  2,  3].  Moreover,  psychological  “treatment”  does  not  involve any adverse side effects as pharmacological treatment. 
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Theory, experience and practice

Theory, experience and practice

It is easy for those of us who work in education to see the value of thinking, including explicit theorising about questions of fundamental importance. In previous thematic editions of this journal, we have argued that the practice of critical thinking is of fundamental importance if virtue, progress and more enlightened practices are to be possible. [1-3] Without populations – in the workplace and in society generally – able to expose underlying assumptions that frequently frame popular debate, we are at the mercy of the spin-doctors and opinion- managers who have made the control of human behaviour their explicit goal. [4-7] In populations governed by the principle of 'moderate anti-intellectualism' [1] people are encouraged to think about 'how-to' questions – how to accomplish certain tasks, to apply established rules, guidelines and theoretical frameworks in particular situations and to achieve pre-determined goals. But underlying, 'why' questions – about the justification for the goals, the intellectual basis for the rules and guidelines as opposed to possible alternatives – are dismissed as impractical. In a world in which we are constantly bombarded with bad arguments, inadequate rationalisations and rhetorical ploys to make us conform to
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Nottinghamshire County Council CONTRACT FOR THE PROVISION OF SCHEDULE 2 SPECIFICATION- CONTRACT A

Nottinghamshire County Council CONTRACT FOR THE PROVISION OF SCHEDULE 2 SPECIFICATION- CONTRACT A

The Contractor shall, before the commencement of the Service, prepare and publish as part of the Service Delivery Plan standard operational procedures manuals governi[r]

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Movements of theory and practice

Movements of theory and practice

Seeing all the joy around in Florence reminded me of Michael Hardt’s book Gilles Deleuze: An Apprenticeship in Philosophy, in which he talks (with Deleuze and Spinoza) about the joy that comes through participation in the practice of collective protest action. He uses the example of the Italian novel Vogliamo tutto [We want everything], which is about the story of a FIAT car plant worker in the late 1960s and his involvement in the formation of a radical political movement and the organisation of collective protest actions (see Hardt, 1993: 45-47). As I am writing this, there are hundreds of thousands of FIAT workers and sympathisers on Italian streets again to protest against the announced closure of several FIAT plants and the loss of thousands of jobs. But there is a crucial difference between the protests Hardt writes about and the current actions by FIAT workers: whereas the workers’ protest action in Vogliamo tutto is a refusal of work and thereby a protest against the specific relations of production and against the essence of work as such, the current actions are a refusal to work, as protest against the reduction of work, against unemployment. The workers in Vogliamo tutto therefore put into question the notion of work as such: “What a joke to celebrate labor day. …I never understood why work ought to be celebrated”, says the ‘hero’ of the novel. 26 And by questioning work as such, the workers’ critique is also “directed precisely at their own essence” (ibid.: 45). In other words, their radical protest action is a questing of the specific relations of power and knowledge that produce work and the social: it is the questing of subjectivity as such. As I have already noted above, this, in my view, was also very much the ‘spirit’ of the ESF: the social forum was a radical questing of one’s own subjectivity.
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The three criteria test, the essential facilities doctrine and the theory of monopolistic bottlenecks

The three criteria test, the essential facilities doctrine and the theory of monopolistic bottlenecks

When applying rule-based regulation in order to discipline network-specific market power, the concept of essential facilities is of crucial importance. This concept suggests the connection to the essential facilities doctrine, derived from US antitrust law, which is meanwhile being increasingly applied in European competition law also. The doctrine states that a facility is only to be regarded as essential if the following conditions are fulfilled: entry to the complementary market is not effectively possible without access to this facility; it is not possible for a supplier on a complementary market to duplicate this facility at a reason- able expense, and there are also no substitutes (Areeda, Hovenkamp, 1988). In the context of the disaggregated regulatory approach the essential facilities doctrine is no longer applied case by case – as is common in US antitrust law – but to an entire class of cases, namely, monopolistic bottleneck facilities charac- terised by a combination of natural monopoly and irreversible costs in the rele- vant range of demand. The design of non-discriminatory conditions of access to essential facilities must be specified in the context of the disaggregated regula- tory approach. It is important in this context to view the application of the essen- tial facilities doctrine in a dynamic context. Therefore, an objective for the for- mulation of access conditions must be to not obstruct infrastructure competition by regulatory micro-management, but rather create incentives for the symmetric development of infrastructure and service competition by rule-based regulation.
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A contract theory approach to special and differential treatment and the WTO

A contract theory approach to special and differential treatment and the WTO

In the first section of this article I set out the conceptual and theoretical background to my investigation. SDT is introduced and its place within the legal framework of the WTO is elucidated upon. This is followed by a short introduction to economic contract theory with particular attention paid to the frame of the incomplete contract. I then apply the analytical framework of economic contract theory to a number of provisions of SDT, finding that the examined provisions of SDT are contractually incomplete and suffer from the deficiencies noted above. In section two, the analysis turns to the TFA with the lessons of contract theory once again applied to deepen our understanding of the SDT provisions therein. In this section, I seek to address whether the TFA is capable of offering a new model of more complete contractual arrangements addressing the differential needs of developing and least developed countries. I find that the TFA offers a much improved balance between ex ante commitment and ex post flexibility than that available under the Uruguay Round agreements. In the final section, I conclude by drawing attention to SDT as a core component of the ‘developmentification’ of the WTO. Given this and going forward, it is clear that much benefit would be derived from employing contract theory as a programmatic tool which can operate alongside more traditional forms of legal analysis to both warn of and remedy obligational defects in the operationalization of differential treatment.
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Application of Game Theory to Conflict Management in a Construction Contract

Application of Game Theory to Conflict Management in a Construction Contract

in payoff tables (Table 1, 2, 3) are expressed in millions of monetary units. Litigation cost in millions considering each combination of strategy applied by players. million - 130. com[r]

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