Mackaay, Ejan --- "The Civil Law of Contract" [2011] ELECD 137; in De Geest, Gerrit (ed), "Contract Law and Economics" (Edward Elgar Publishing, 2011)

Book Title: Contract Law and Economics

Editor(s): De Geest, Gerrit

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847206008

Section: Chapter 20

Section Title: The Civil Law of Contract

Author(s): Mackaay, Ejan

Number of pages: 30

Extract:

20 The civil law of contract
Ejan Mackaay*


1. Civil Law of Contract ­ General Observations1

1.1. General Features of Codified Law
This chapter presents a brief survey of economic analyses performed
on contractual institutions and doctrines that are specific to civil law ­
as opposed to common law ­ systems (for more detailed analysis, see
Mackaay forthcoming). What sets civil law systems apart from common
law systems, besides differences in vocabulary, is that their core rules
are set out in codes drafted with the aim of covering in principle all rela-
tionships within the field of law they govern. All legal problems arising
within that field are deemed to be soluble by reference to, and through
interpretation of, one or more provisions of the code.
Whilst codes consolidate in their provisions the solutions found to a
great many practical problems that have arisen over time, it would be
illusory to expect them to provide ready-made solutions to all conceivable
problems. To cope with novel or imperfectly foreseen problems, whilst yet
maintaining the claim to complete coverage, the codes need to resort to a
small number of open-ended concepts that can be used to fashion appro-
priate solutions to such problems. Good faith and abuse of rights are some
of these concepts.
One of the main objectives of codification in civilian legal systems is to
make law accessible: all the law for a given field is in principle to be found
in one place ­ the code ­ rather than in a ...