契約法領域における「法と経済学」

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書誌事項

タイトル別名
  • Economic approach to the Law of Contracts
  • ケイヤクホウ リョウイキ ニ オケル ホウ ト ケイザイガク

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抄録

In this report, I have tried first to show the characteristic viewpoints and framework of the economic approach to the law of contracts. The Problems noted here are as follows;<br>(1) General principles of contract law supporting the free market system, especially, (a) individual accountability and freedom of contract, (b) the binding force of contract and, remedies (including damages as a test for the efficient breach of contract), (c) fairness of the bargain and fair risk allocation;<br>(2) Interpretation of contract and the role of dispositive law as a means reducing information error costs;<br>(3) Problems concerned with control of or intervention to contracts, especially regulations of disclosure, undue influence and unfair terms.<br>Even so rough a survey, reveals the efficacy of 'law & economics' penetrating the economic function of legal institutions. However, the fact that this approach produces some clear explanations may not be so surprising, given the importance of economic rationality in social behavior.<br>However, the law & economics approach remains questionable with respect to efficiency as a normative standard for legal justice. First, efficiency without theory of wealth distribution is really neutral (the strong often becomes much stronger). Second, economic analysis treats all trading as an uncertain or groping process for equilibrium ('tatonnement') without taking into account individual differencies, which are always very important for legal justice. Third, lawyers must construct legal arguments based on traditional rules or conceptions generally containing some order of values mandated by legislators and legal traditions, which are not always in accordance with the economic efficiency.<br>Lastly, contrary to the above, I must say, recognition of limitations in analogies to market mechanisms do not reduce the usefulness of law & economics. The tentions between traditional legal theory and law & economics should promote new fruitful developments in both.

収録刊行物

  • 法社会学

    法社会学 1993 (45), 103-110,333, 1993

    日本法社会学会

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