See Xxxxxxx X. Xxxxxxx, Mistake, Disclosure, Information, and the Law of Contracts, 7 J. LEGAL STUD. 1, 4 (1978) (noting that insurance is often the only effective means of risk reduction); Xxxxxx & Xxxxxxxxxx, supra note 8, at 91. 240. The reliance would also have to be in good faith. 241. For example, because of the difficulty, even impossibility, of establishing authenticity or establishing pricing for art, invalidating contracts where there was a failure of cognitive intent may 512 KANSAS LAW REVIEW [Vol. 56 An expanded intent analysis streamlines the current regime of contract defenses, which is generally agreed to be inexact at best, and incoherent at worst. It erases the artificial distinctions inherent in the doctrinal categories (such as the timing of the discovery of the excusing condition) to focus on what courts tend to focus on anyway—contractual intent. It is flexible enough to accommodate evolving business and social norms. In particular, the Internet has provided a useful new medium by which to conduct transactions while its very widespread availability and accessibility create more opportunities for basic assumption errors. Let us return to the hypothetical Internet homebuyer presented at the beginning of this Article. Our homebuyer purchased her home after viewing several attractive pictures that accurately reflected the home’s condition. They did not, however, reveal something of great importance to the homebuyer. She lacked the cognitive intent to enter into the transaction because she did not know about the noise from the nearby road. Her contextual purposive intent in entering into the transaction was to purchase a home that provided peace and tranquility. Under my proposed intent analysis, she should therefore be permitted to avoid the agreement provided that it is not offset by the societal interest in the security of transaction. If, for example, she had not discovered the noisy road until she had moved into the house, she should not be allowed to avoid the agreement. This expanded intent analysis thus reflects something more than legal obligations—it reflects the way people actually conduct business. 242 Merchants are not required to refund conforming purchases to unhappy customers,243 but many do anyway and claim “satisfaction or your money back, no questions asked.” Permitting avoidance would also encourage xxxxxx disclosure by Internet sellers. Existing law generally does not impose a duty to disclose; yet imposing upon the purchaser the same...
See Xxxxxxx X. (2002), The Region as a Socio-technical Accomplishment of Mobile Workers, in Brown, B. et al., (eds.), Wireless World: Social and Interactional Aspects of Mobile Age, p. 46-61, London: Springer referred to in Mobile Communication and Society, Castells et al. (eds.), (2007), p. 80, MIT Press, Cambridge, Massachusetts. 15 Xxx, X-X., Korea: Personal Meaning in Xxxx and Xxxxxxx (eds.), Personal Contact: Mobile Communication, Private Talk, Public Performance, p. 63 -79, Cambridge University Press referred to in supra Castells et at. n. 12. permanent connectivity results in the blurring of lines between work and play.16 Indeed with the modern age society, there is a social expectation that one is always connected and contactable almost instantly. This is aptly expressed by a Professor of Psychology from the University of Michigan, Prof. Xxxxx Xxxxx, when he said “The social norm is that you should respond within a couple of hours, if not immediately. If you don’t, it is assumed you are out to lunch mentally, out of it socially, or don’t like the person who sent the e-mail.”17 Consequently, despite the convenience and connectivity that the mobile phone provides, the technology is regarded as one of the contri- buting causes of increased stress in the society’s fast lane since users feel they need to be contactable and must always answer the phone.18 As shown above, there are benefits and drawbacks of being reachable anytime and anywhere. For us, at this point of research it is important to establish that ‘anytime, anywhere’ is a truth that must be seriously included in our investigations.
See Xxxxxxx X. Xxxxxx, 000 X.X.0x 956, 961-62 (Ill. App. Ct. 1991). In analyzing a sales manager’s statement in a letter to a new account executive indicating that the sales manager would use his best efforts to give the account executive an opportunity to earn a certain annual gross salary, the court held that the phrase best efforts was too indefinite and uncertain to be enforceable (citing Xxxxxxx and Kraftco) and, thus, the sales manager did not unequivocally guarantee the account executive a certain mini- mum salary.
See Xxxxxxx X. Xxxxxxx, An Intuoduction to the Inteunationat Cuiminat Couut¸ at 130, (Cambridge University Press 2nd ed. 2004).
See Xxxxxxx X. Xxxxx & Xxxxx X. Xxxxx, Monetizing the Shield: Tax Receivable Agreements in Private Equity Deals, DEBEVOISE & XXXXXXXX PRIV. EQUITY REP. (Debevoise & Xxxxxxxx LLP, New York, N.Y.), Fall 2010, at 9, 9 (“[I]n a number of public offerings in recent years the pre-IPO shareholders have devised ways of retaining for themselves the economic benefits of identified tax attributes . . . with the result that the company is effectively taken public ex those attributes.”). 2018] TAX RECEIVABLE AGREEMENTS IN IPOs 897 12% 10% 8% 6% 4% 2% 0% 2002 2004 2006 2008 2010 2012 2014 2016 2018
See Xxxxxxx X. Xxxxxx, The Limits of Administrative Guidance in the Interpretation of Tax Treaties, 87 TEX. L. REV. 1097, 1097-98 (2009). 88. N.W. Life Assurance Co. of Can. v. Comm’r, 107 T.C. 363, 385 (USTC 1996). However, there was some debate as to whether the joint technical explanation was consistent with the terms of the treaty itself. See Canada x. Xxxxxxx Estate, [1998] 1 F.C. 0 (Can. F.C.A., 1997) (the court refusing to defer to the United States technical explanation regarding the taxation of capital gains, despite acknowledging that the Canadian Minister of Finance had endorsed the explanation contained therein, because the technical explanation was inconsistent with the intent of the parties as reflected in the treaty). To the extent that the technical explanation is inconsistent with the original treaty, it would be considered an impermissible modification or amendment, discussed further Parties may also agree to interpretation of particular terms through the exchange of notes. This can be made difficult, however, where different interpretations are offered at different times by different government bodies. An illustrative case involves an arbitration concerning the privileges accorded to the European Molecular Biology Laboratory (EMBL), an international organization with its headquarters in Germany.89 A dispute arose with respect to EMBL’s tax exemptions under its Headquarters Agreement with Germany. The tribunal found that the interpretation of the decisive provisions turned on a 1977 response of Germany’s Federal Ministry for Research and Technology (BMFT) to EMBL’s earlier request for clarification on the tax issue, and on a 1987 Settlement Agreement with EMBL. Both of those documents reflected Germany’s agreement with EMBL’s interpretation of its rights.90 Of interest, a 1982 letter from the Federal Foreign Ministry—allegedly revoking the 1977 letter of the BMFT—did not prevent the tribunal from finding that an agreement had been reached on the interpretation.91 A question that arises in this context is whether states’ actions at international organizations are relevant conduct for the purposes of treaty interpretation. For instance, in the WTO context, can agreements of the Ministerial Conference come under Article 31(3)(a) when they interpret obligations under existing WTO Agreements? As an example, in 2001 the WTO members negotiated a Declaration on the TRIPS Agreement and Public Health (the Doha Declaration),92 which served in part to clarify the i...
