Abstract: The general thesis put forward in this chapter is that there is no reason to expect the economic analysis of law to be any less applicable to civil law systems than it is to common law systems, once structural differences between the two families are taken into account. Civil law systems aim at bringing together all rules pertaining to a given field in a law code; to keep the code workable, its provisions have to be concise, often using rather abstract language to summarise a broad range of situations encountered in practice. Since codes must in principle cover all legal problems within their purview, they carry an implicit ambition of being complete. As a result, unlike common law systems, they have to rely on some broad and open-ended concepts such as good faith or abuse of rights to fill the gaps and “close” the system. The contents of good faith can be clarified usefully by linking it to the economic concept of opportunism.In looking more closely at some civil law concepts, one discovers that matters having triggered discussion in common law systems, such as the desirability of limiting penalty clauses or specific performance, are also cause for reflection in civil law systems. Examination of civil law defects of consent shows developments and arguments that are reminiscent of common law discussions, with a different vocabulary. This similarity had already been highlighted in an Anglo-French comparative exercise (Harris/Tallon 1991).All in all, law and economics provides a useful tool for lawyers in civil law systems at a time when Europe is looking for common principles of contract and delictual responsibility. When one is comparing national legal systems in search of communalities, it offers a functional analysis in terms of which different national systems can, as it were, be put on a common denominator. That is an important asset for doctrinal analysis.
Publication Year: 2011
Publication Date: 2011-01-01
Language: en
Type: article
Indexed In: ['crossref']
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Cited By Count: 5
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