A comparative evaluation of the legislative controls on unfair terms and exemption clauses in consumer and business contracts in England and Brazil

The purpose of the present study is to make a comparative evaluation of the legislative controls on unfairness in the context of B2B, B2C and small businesses contracts in England and Brazil. This work will focus on the examination of statutes and relevant case law which regulate exemption clauses and terms on the basis of their ‘unfairness’. The approach adopted by legislation and courts towards the above controls may vary according to the type of contract. Business contracts are more in line with the classical model of contract law according to which parties are presumably equals and able to negotiate terms. As a consequence interventions should be avoided for the sake of freedom of contract even if harmful terms were included. Such assumption of equality however is not applicable to small businesses contracts because SMEs are often in a disadvantageous position in relation to their larger counterparties. Consumer contracts in their turn are more closely regulated by the English and Brazilian legal systems which recognised that vulnerable parties are more exposed to unfair terms imposed by the stronger party as a result of the inequality of bargaining power. For this reason those jurisdictions adopted a more interventionist approach to provide special protection to consumers which is in line with the modern law of contract. The contribution of this work therefore consists of comparing how the law of England and Brazil tackles the problem of ‘unfairness’ in the above types of contracts. This study will examine the differences and similarities between rules and concepts of both jurisdictions with references to the law of their respective regional trade agreements (EU and the Mercosul). Moreover it will identify existing issues in the English and Brazilian legislation and recommend lessons that one system can learn from the other.

Contracts for the sale of land and personal property:the equitable interests of the purchaser

As property lawyers, we are all familiar with the general principle that a contract for the sale of land, which is capable of specific performance, operates in equity so as to confer a trust on the purchaser pending completion of the sale. Although some controversy exists as to the exact nature of the trust, it is well established that, upon exchange of contracts, equity will ‘‘treat that as done which ought to be done’’1 with the consequence that the purchaser acquires equitable ownership even though full (legal) title to the land will not pass until completion (and registration). As land is unique, specific performance is readily available in the context of sales of land where damages would, clearly, not be an adequate remedy. The same cannot be said for contracts for the purchase of personal property where invariably the subject matter is not unique and where a substitute can easily be acquired in the open market. In circumstances, however, where the property is unique or scarce (for example, a rare painting or vintage car), the maxim that ‘‘equity treats as done that which ought to be done’’ may be invoked so as to confer on the seller an equitable obligation to transfer the property to the purchaser in fulfilment of the contract. Where, therefore, the contract is specifically enforceable in this way, the seller, it is submitted, will again hold the property on trust for the purchaser where, as in a contract for the sale of land, there is an interval between the date of the contract and completion of the sale. The notion that a seller holds personal property upon trust for the purchaser pending completion of the sale is admittedly controversial, but this article seeks to argue that the same principles governing equity’s intervention in sales of land should apply in the context of sales of personalty. It is submitted that equity’s role in imposing a trust on the vendor both in relation to sales of land and personalty may be important in safeguarding the interests of the purchaser prior to, as well as after, completion of the transaction.

Opportunism, hold-up and the (contractual) theory of the firm

This paper considers the role of opportunism in three contractual theories of the firm: rent-seeking theory, property rights theory, and agency theory. In each case I examine whether it is possible to have a functioning contractual theory of the firm without recourse to opportunism. Without opportunism firms may still exist as a result of issues arising from (incomplete) contracting. Far from posing a problem for the theory of the firm, questioning the role of opportunism and the ubiquity of the hold-up problem helps us understand more about the purpose and functions of contracts which go beyond mere incentive alignment.

How contracts and enforcement explain transaction outcomes

This study considers the influence of contracts on enforcement and the subsequent performance impact of aligned and misaligned enforcement. We define enforcement as a corrective action aimed at remedying problems occurring in the transaction. First we explain the role of contracts and show that at the component level, contracts can both increase and decrease enforcement. Building on an alignment perspective and accounting for the endogeneity of enforcement, we use these contractual components and variables related to enforcement to predict the occurrence of enforcement. We use such predictions to show that aligned enforcement results in higher performance. We also show that the performance impact of misaligned enforcement is relatively greater for transactions where enforcement is not expected. We conduct the study using a unique dataset reporting on 971 business transactions across a wide range of industries.

The propensity to hedge with futures contracts:the case of potato futures contracts

This paper studies why UK non-financial firms hedge with potato futures contracts. It is found that the financial characteristics of firms in the sample play an important role in influencing the propensity to hedge. For example, it is found that firms that hedge are on average larger than firms that do not hedge. Firms that hedge also have more volatile earnings. Furthermore, firms that do hedge appear to want to smooth earnings to reduce the costs of financial distress and avoid entering the highest tax threshold. © 2005 Taylor & Francis.

The management of foreign exchange exposure on business contracts overseas

This thesis is a piece of applied research. It is the result of a joint project between the University of Aston Interdisciplinary Higher Degrees Scheme and International Aeradio plc (IAL). It considers the structure and organisation of overseas business and the effects that exchange rate movements have on financial performance. It looks in detail at a series of overseas contracts and factors which affect the monitoring and performance of those contracts. From this initial research is developed a series of conceptual models which attempt to capture the effects of foreign exchange rate movements on contract costing, the monitoring of performance on overseas contracts and a measure of company wide exposure. These models are then considered in the context of real IAL generated data and circumstances. The work is finally considered in the context of a survey of other companies with a similar mode of undertaking overseas business with the aim of placing the work in a general context.

Exploring the dimensions and transactional outcomes of incomplete business contracts

With an increased emphasis on outsourcing and shortening business cycles, contracts between firms have become more important. Carefully written contracts contribute to the efficiency and longevity of inter-firm relationships as they may constrain opportunism and are often a less costly governance mechanism than maintaining complex social relationships (Larson 1992). This exploratory examination adds to our understanding of how incomplete contracts affect interorganizational exchange. First, we consider the multiple dimensions of contract constraints (safeguards). We also investigate the extent that constraints affect decisions to enforce the relationship by delaying payments, and whether the decision is efficient. Finally, we examine the extent the constraints are effective (and ineffective) at reducing transaction problems associated with enforcement. Based on 971 observations of transactions using explicit, written terms and other secondary data in the context of IT transaction in The Netherlands we test our research propositions.

The effect of universal futures on opening and closing stock market prices

Purpose – In 2001, Euronext-Liffe introduced single security futures contracts for the first time. The purpose of this paper is to examine the impact that these single security futures had on the volatility of the underlying stocks. Design/methodology/approach – The Inclan and Tiao algorithm was used to show that the volatility of underlying securities did not change after universal futures were introduced. Findings – It was found that in the aftermath of the introduction of universal futures the volatility of the underlying securities increases. Increased volatility is not apparent in the control sample. This suggests that single security futures did have some impact on the volatility of the underlying securities. Originality/value – Despite the huge literature that has examined the effects of a futures listing on the volatility of underlying stock returns, little consensus has emerged. This paper adds to the dialogue by focusing on the effects of a single security futures contract rather than concentrating on the effects of index futures contracts.

Damages for breach of contract

This practical book deals solely with those damages arising as a breach of contract, where the aim of the damages is to place the plaintiff in the same position as if the contract had been performed. The book is split into three main parts: general principles such as limitations, causation, remoteness, mitigation and contributory negligence; specific breaches, such as sale of goods, supply of services, travel contracts and sale of land; and general issues and procedures. The only authoritative practitioner work focusing on this area, it provides a high-level, comprehensive and practical text.

Cost-based pricing in the NHS internal market : accounting choices and the achievement of economic efficiency

Since 1988, quasi-markets have been introduced into many areas of social policy in the UK, the NHS internal market is one example. Markets operate by price signals. The NHS Internal Market, if it is to operate efficiently, requires purchasers and providers to respond to price signals. The research hypothesis is - cost accounting methods can be developed to enable healthcare contracts to be priced on a cost-basis in a manner which will facilitate the achievement of economic efficiency in the NHS internal market. Surveys of hospitals in 1991 and 1994 established the cost methods adopted in deriving the prices for healthcare contracts in the first year of the market and three years on. An in-depth view of the costing for pricing process was gained through case studies. Hospitals had inadequate cost information on which to price healthcare contracts at the inception of the internal market: prices did not reflect the relative performance of healthcare providers sufficiently closely to enable the market's espoused efficiency aims to be achieved. Price variations were often due to differing costing approaches rather than efficiency. Furthermore, price comparisons were often meaningless because of inadequate definition of the services (products). In April 1993, the NHS Executive issued guidance on costing for contracting to all NHS providers in an attempt to improve the validity of price comparisons between alternative providers. The case studies and the 1994 survey show that although price comparison has improved, considerable problems remain. Consistency is not assured, and the problem of adequate product definition is still to be solved. Moreover, the case studies clearly highlight the mismatch of rigid, full-cost pricing rules with both the financial management considerations at local level and the emerging internal market(s). Incentives exist to cost-shift, and healthcare prices can easily be manipulated. In the search for a new health policy paradigm to replace traditional bureaucratic provision, cost-based pricing cannot be used to ensure a more efficient allocation of healthcare resources.

Evaluation and development of drainage and pipeline construction processes

In 1974 Dr D M Bramwell published his research work at the University of Aston a part of which was the establishment of an elemental work study data base covering drainage construction. The Transport and Road Research Laboratory decided to, extend that work as part of their continuing research programme into the design and construction of buried pipelines by placing a research contract with Bryant Construction. This research may be considered under two broad categories. In the first, site studies were undertaken to validate and extend the data base. The studies showed good agreement with the existing data with the exception of the excavation trench shoring and pipelaying data which was amended to incorporate new construction plant and methods. An inter-active on-line computer system for drainage estimating was developed. This system stores the elemental data, synthesizes the standard time of each drainage operation and is used to determine the required resources and construction method of the total drainage activity. The remainder of the research was into the general topic of construction efficiency. An on-line command driven computer system was produced. This system uses a stochastic simulation technique, based on distributions of site efficiency measurements to evaluate the effects of varying performance levels. The analysis of this performance data quantities the variability inherent in construction and demonstrates how some of this variability can be reconciled by considering the characteristics of a contract. A long term trend of decreasing efficiency with contract duration was also identified. The results obtained from the simulation suite were compared to site records collected from current contracts. This showed that this approach will give comparable answers, but these are greatly affected by the site performance parameters.

Servitization within manufacturing:exploring the provision of advanced services and their impact on vertical integration

Purpose – The debate about services-led competitive strategies continues to grow, with much interest emerging around the differing practices between production and servitized operations. The purpose of this paper is to contribute to this discussion by investigating the vertical integration practice (in particular the micro-vertical integration, otherwise known as the supply chain position) of manufacturers who are successful in their adoption of servitization. Design/methodology/approach – To achieve this the authors have investigated a cross-section of four companies which are successfully delivering advanced services coupled to their products. Findings – Manufacturers who have embraced the servitization trend tend to retain capabilities in design and production, and do so because this benefits their speed, effectiveness and costs of supporting assets on advanced services contracts. Research limitations/implications – These are preliminary findings from a longer term research programme. Practical implications – Through this research note the authors seek to simultaneously contribute to the debate in the research community and offer guidance to practitioners exploring the consequences of servitization. Originality/value – Successful servitization demands that manufacturers adopt new and alternative practices and technologies to those traditionally associated with production operations. A prevailing challenge is to understand these differences and their underpinning rationale. Therefore, in this research note, the authors report on the practices of four case companies, explore the rationale underpinning these, and propose an hypothesis for the impact on vertical integration of successful servitization.

Impact of derivatives trading on emerging stock markets:some evidence from India

It is generally accepted that the introduction of financial derivatives that facilitate hedging is an important step in the development of stock markets. However, financial derivatives can potentially increase volatility in the underlying cash market, which might be detrimental to the development of the stock market itself. Using data from India, we examine one possible route through which derivatives trading can increase cash market volatility: expiration day effect. Our results indicate that expiration of equity derivatives contracts does not have any effect on the intra-day volatility of the market index, and it reduces the volatility of inter-day returns to the index.

Angel grants employees their wish – for time off in return for high performance:new breed of incentives based on what staff really want from their employer

Purpose – Describes a new breed of HR strategies that encourage employee involvement and commitment as part of high-performance working (HPW). Design/methodology/approach – Focuses on managing employee attitudes and skills through careful attention to leadership, reward and job-design policies. Highlights the differences between people's formal employment contracts and their less formal “psychological contracts”, and emphasizes the importance of the latter. Provides a case study of UK recruitment consultancy Angel Services Group Ltd, which allows staff who meet their daily targets to go home an hour early. Findings – Urges companies to have processes in place to understand the needs of individual employees. This can be done through leadership policies that require all supervisors and managers not only to manage their staff but also to know them as people. Practical implications – Emphasizes that organizations need to see HPW initiatives as part of the normal way of managing people, and not as “flavour of the month”. Originality/value – Outlines a wide range of initiatives that could help organizations to gain their employees' commitment.