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RDG
online Restitution Discussion Group Archives |
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1. with respect to the part of the discussion about
the function of 'estoppel', getting rid of 'estoppel' in re contracts
which lack formal requirements seems easy enough via a formulation which
probably fits a lot of cases:
the non-conforming contract is to be given no effect
therefore if the transaction is wholly executory, neither
party may enforce
but if something of value has changed hands, its amount
is awarded to the supplier and if the contract is entirely executed, it is in repose
===========
however, a large problem with a formulation so reeking
of the common law is that it rejects a plausible premise that the consequence
of non-compliance with a statute ought to be determined from the statute
rather than common law deductions: the language then of the particular
form statute ought to be consulted [that it will probably point in no
direction at all does not mean it shouldn't be given primacy if articulate]
at least in american law, there have been determinations
with respect to particular form statutes [particularly one requiring a
writing for a listing with a real-estate broker] that the legislative
intent behind the formal requirement is so serious that non-compliance
precludes either enforcement or restitution.
2. often, large legal ideas like 'estoppel' are used
to explain results reachable by narrower concepts: there was a spectacular
article around the beginning of the 20th century called 'waiver distributed',
in which 'waiver' was shown to be the name of a lot of other things, such
as 'estoppel' <== Previous message Back to index Next message ==> |
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