《国外法律相关参考资料合集》（英文版） 民法合同的反理论性质

The Anti-Theoretical Nature of civil Law Contract Scholarship and the need for an Economic Theory Aristides n. hatzis* The absence of theories developed for Roman law and the absence of grand heories in Civil contract law scholarship were outcomes of a particularistic ap. proach to the problems created by the deficiencies of markets and driven by the need for the construction of a legal framework conducive to economic progress The generation of efficient results by Civil law through the selection of efficient rules and standards was completed over the course of several centuries and stabi- lized after the great codifications. Common law had for centuries attempted to develop a similar construct that would be stable enough to facilitate economic relations. Borrowing ideas and solutions from Civil law was the easy way out Despite the numerous legal transplants, the Common law fought hard to preserve a false independence and a parallel dilapidated coherence by building unified conclusive, but dogmatic theories. The mimicking of Civil law has led to some efficient solutions, but with many islands of" inefficiency"trapped in the sea of rigid theories(bargain theory, privity, etc. ) On the other hand, Civil law scholar hip and practice has found it increasingly difficult to respond to the fast- changing economic circumstances. For the first time in history, economic rela tions have become so complicated that it is impossible for a judge endowed only with common sense to solve problems created by the dysfunctions of markets Economic expertise is not only helpful, but also required. A responsive eco- nomic theory of contract law is almost imperative if Civil law is to continue playing the role that it has successfully performed for centuries: providing the legal framework that helps the economy function Lecturer of Philosophy of Law Theory of Institutions, University of Athens (LL. B. 1989, LL. M. 1993, Aristotle University of Thessaloniki, Faculty of Law, LL. M. 1994, J.S.D. 1999, University of Chicago Law School). An earlier draft of this paper was presented at the 14 Annual Conference of the European Asso- ciation of Law Economics held at Barcelona, September 4-6, 1997. I wish to thank the participants for their helpful suggestions, as well as Prof. Katharina Pistor and Dr. Aspasia Tsaoussis. Thanks are also due to the many members of the legal studies Network(SSRN-LSN) who sent me their comments and re- lated work. Email: ahatzis @phs uoa. gr. Copyright o 2003 by Aristides N. Hat-

The Anti-Theoretical Nature of Civil Law Contract Scholarship and the Need for an Economic Theory Aristides N. Hatzis∗ Abstract The absence of theories developed for Roman law and the absence of grand theories in Civil contract law scholarship were outcomes of a particularistic ap￾proach to the problems created by the deficiencies of markets and driven by the need for the construction of a legal framework conducive to economic progress. The generation of efficient results by Civil law through the selection of efficient rules and standards was completed over the course of several centuries and stabi￾lized after the great codifications. Common law had for centuries attempted to develop a similar construct that would be stable enough to facilitate economic relations. Borrowing ideas and solutions from Civil law was the easy way out. Despite the numerous legal transplants, the Common law fought hard to preserve a false independence and a parallel dilapidated coherence by building unified, conclusive, but dogmatic theories. The mimicking of Civil law has led to some efficient solutions, but with many islands of “inefficiency” trapped in the sea of rigid theories (bargain theory, privity, etc.). On the other hand, Civil law scholar￾ship and practice has found it increasingly difficult to respond to the fast￾changing economic circumstances. For the first time in history, economic rela￾tions have become so complicated that it is impossible for a judge endowed only with common sense to solve problems created by the dysfunctions of markets. Economic expertise is not only helpful, but also required. A responsive eco￾nomic theory of contract law is almost imperative if Civil law is to continue playing the role that it has successfully performed for centuries: providing the legal framework that helps the economy function. ∗ Lecturer of Philosophy of Law & Theory of Institutions, University of Athens (LL.B. 1989, LL.M. 1993, Aristotle University of Thessaloniki, Faculty of Law; LL.M. 1994, J.S.D. 1999, University of Chicago Law School). An earlier draft of this paper was presented at the 14th Annual Conference of the European Asso￾ciation of Law & Economics held at Barcelona, September 4-6, 1997. I wish to thank the participants for their helpful suggestions, as well as Prof. Katharina Pistor and Dr. Aspasia Tsaoussis. Thanks are also due to the many members of the Legal Studies Network (SSRN-LSN) who sent me their comments and re￾lated work. Email: ahatzis@phs.uoa.gr. Copyright © 2003 by Aristides N. Hat￾zis

Hatis: The Anti-Theoretical Nature of Civil Law Contract Scholarship and the Need for an Economic Theory Table of Contents 1. The Absence of Theory: Civil vs Common Contract Law 1. 1. Too Much Theory or Too Little Certainty? 12.The“ fficiency” of roman Law and of Contempo rary civil Contract Law 2. Economic Analysis for a" Contract Law 2. 1. From the Absence of Theory to the Neoclassical Consensus 2. 2. The Application of Economic Analysis to Greek Contract Law: Problems and Considerations 23. Contract Law and Distributive Justice 3. Conclusion 4. Bibliography

Hatzis: The Anti-Theoretical Nature of Civil Law Contract Scholarship and the Need for an Economic Theory 2 Table of Contents 1. The Absence of Theory: Civil vs. Common Contract Law 1.1. Too Much Theory or Too Little Certainty? 1.2. The “Efficiency” of Roman Law and of Contempo￾rary Civil Contract Law 2. Economic Analysis for a “Civil” Contract Law 2.1. From the Absence of Theory to the Neoclassical Consensus 2.2. The Application of Economic Analysis to Greek Contract Law: Problems and Considerations 2.3. Contract Law and Distributive Justice 3. Conclusion 4. Bibliography

Commentaries on Law& Economics, Vol. 2(2002) What the romans did not have were treatises on the law of contracts in general. We have them to superfluity. But then our day is much given to Total Theories Which Ex plain Everything(Except What Doesn't Fit Tony Weir(1992: 1646) I. The absence of Theory: Civil vs Common Contract Law L.l. Too Much Theory or Too Little Certainty? L. A monograph was published in 1997 under the title The Richness of Contract Law by the well-known American contract law scholar and Professor at cornell law school robert hillman The subtitle of the book, " An Analysis and Critique of Contempo- rary Theories of Contract Law"refers to a number of theories de- veloped in the Common law world (and especially in the United States)on contract law, a field of law ironically declared dead three decades ago(Gilmore 1974). However, in this paper, we will be discussing neither the thesis of the said book nor the problem of the life or death of contract We will rather be dealing with a question that is qui turbing for European scholars who comparatively approach can Common law, and that arises often as they browse through the voluminous literature on the theory of Common contract law of the past one hundred years(see mainly Hillman 1997, but also Barnett 1984 and 1989, Rakoff 1996 and esp. Cheffins 1999). This ques- tion is the following: Why isn't there a similarly rich literature or a 1"TO]n the whole, contract law suitably promotes the formation and enforce ment of private arrangements and ensures some degree of fairness in the ex- change process. Moreover, contract law largely succeeds because it is the prod uct of the legal systems reasonable and practical compromises over conflicting alues and interests. (Hillman 1997: 2 2 But see Farnsworth(1992) and also the symposium on The Death of Contract n90Nn.U.L.Rev.1(1995)

Commentaries on Law & Economics, Vol. 2 ( 2002) 3 What the Romans did not have were treatises on the law of contracts in general. We have them to superfluity. But then our day is much given to Total Theories Which Ex￾plain Everything (Except What Doesn't Fit). Tony Weir (1992: 1646) 1. The Absence of Theory: Civil vs. Common Contract Law 1.1. Too Much Theory or Too Little Certainty? I. A monograph was published in 1997 under the title The Richness of Contract Law by the well-known American contract law scholar and Professor at Cornell Law School Robert Hillman. The subtitle of the book, “An Analysis and Critique of Contempo￾rary Theories of Contract Law” refers to a number of theories de￾veloped in the Common law world (and especially in the United States) on contract law, a field of law ironically declared dead three decades ago (Gilmore 1974). However, in this paper, we will be discussing neither the thesis of the said book1 nor the problem of the life or death of contract.2 We will rather be dealing with a question that is quite dis￾turbing for European scholars who comparatively approach Ameri￾can Common law, and that arises often as they browse through the voluminous literature on the theory of Common contract law of the past one hundred years (see mainly Hillman 1997, but also Barnett 1984 and 1989, Rakoff 1996 and esp. Cheffins 1999). This ques￾tion is the following: Why isn't there a similarly rich literature or a 1 “[O]n the whole, contract law suitably promotes the formation and enforce￾ment of private arrangements and ensures some degree of fairness in the ex￾change process. Moreover, contract law largely succeeds because it is the prod￾uct of the legal system's reasonable and practical compromises over conflicting values and interests.” (Hillman 1997: 2). 2 But see Farnsworth (1992) and also the symposium on The Death of Contract in 90 Nw. U. L. Rev. 1 (1995)

Hatis: The Anti-Theoretical Nature of Civil Law Contract Scholarship and the Need for an Economic Theory similar number of theories developed for civil contract law? What this question calls attention to is the absence of contemporary grand theories(cf. Gazes 1995: 36 n59; 1997), that is, theories which purport to describe, interpret and even modify contract law in congruence with major philosophical, sociological, historical political or economic theories and which claim universality. By undermining the formalistic mentality that permeates law as a sup posedly autonomous discipline, grand theorizing has the potential of transforming legal theory from an anti-theoretical, parochial of social control If we look over the impressive literature published on con- tract law over the last two decades in the numerous Common law (especially American) journals and law reviews, we will discover lat the purely doctrinal studies have been confined to the loy ranking journals and universities, to the developments and sur veys of the law sections and to the comments and notes of student law review editors. Nearly all the well-known American contract scholars(and there are many) can be easily categorized according to their adherence to a specific theory, most of them being either “ neoclassical”or"“ economists" All of them discuss broadly theo 3 According to Gazes( 1995: 20, n. 20 and 26, n 32), codification symbolizes the end of laws development(or at least of its flourishing). For the problems related to codification in the field of contracts, see generally Hellner(1990)and lontai (1990). See also Kotz (1983) 4 Before World War Il, and especially in the era of the major codifications, a significant but dated discussion had taken place in continental Europe(esp Friedninly). The work of Friedrich Carl von Savignys historical school and Georg liberal and with no essential differences thought of Thibaut and Welcker)are examples of theoretical discussions that are absent today in continental Europe See mainly Reimann(1990) and Whitman(1990), and also Reimann(1991), lenner(1989), Ruckert(1989), Herget& Wallace(1987)and Joerges(1994) 5 When applied to contract law theory, the term"neoclassical"signifies some- thing quite different from "neoclassical economics", a term widely used to de- scribe mainstream economics. See Heijdra Lowenberg(1988), Lowenberg (1990), Medema Samuels(1996), and D Autume Cartelier(1997). How-

Hatzis: The Anti-Theoretical Nature of Civil Law Contract Scholarship and the Need for an Economic Theory 4 similar number of theories developed for civil contract law?3 What this question calls attention to is the absence of contemporary4 grand theories (cf. Gazes 1995: 36 n.59; 1997), that is, theories which purport to describe, interpret and even modify contract law in congruence with major philosophical, sociological, historical, political or economic theories and which claim universality. By undermining the formalistic mentality that permeates law as a sup￾posedly autonomous discipline, grand theorizing has the potential of transforming legal theory from an anti-theoretical, parochial, interpretative technique into a science of social control. If we look over the impressive literature published on con￾tract law over the last two decades in the numerous Common law (especially American) journals and law reviews, we will discover that the purely doctrinal studies have been confined to the low￾ranking journals and universities, to the “developments and sur￾veys of the law” sections and to the comments and notes of student law review editors. Nearly all the well-known American contract scholars (and there are many) can be easily categorized according to their adherence to a specific theory, most of them being either “neoclassical”5 or “economists”.6 All of them discuss broadly theo- 3 According to Gazes (1995: 20, n.20 and 26, n.32), codification symbolizes the end of law's development (or at least of its flourishing). For the problems related to codification in the field of contracts, see generally Hellner (1990) and Lontai (1990). See also Kötz (1983). 4 Before World War II, and especially in the era of the major codifications, a significant but dated discussion had taken place in continental Europe (esp. Germany). The work of Friedrich Carl von Savigny's historical school and Georg Friedrich Puchta's conceptual jurisprudence (and also the less influential, more liberal and with no essential differences thought of Thibaut and Welcker) are examples of theoretical discussions that are absent today in continental Europe. See mainly Reimann (1990) and Whitman (1990), and also Reimann (1991), Klenner (1989), Ruckert (1989), Herget & Wallace (1987) and Joerges (1994). 5 When applied to contract law theory, the term “neoclassical” signifies some￾thing quite different from “neoclassical economics”, a term widely used to de￾scribe mainstream economics. See Heijdra & Lowenberg (1988), Lowenberg (1990), Medema & Samuels (1996), and D'Autume & Cartelier (1997). How-

mentaries on Law Economics, Vol 2(2002) retical issues, even when they set out to solve particular doctrinal problems(cf Cheffins 1999: 199-200) ever, the similarities go beyond the mainstream status. I would characterize the neoclassical theory of contracts as a rather amateurish attempt on the part of con- tract scholars(in Common law under the legacy of equity"and in Roman Civil law of ius praetorium)to keep in touch with the developments of economic the ory after World War Il (i.e. economic neoclassicism) rather than to"socialize contract law. This is mostly true for the U.S.A, but also for Europe. See Hatzis (2000c) 6 From an ongoing citation study on American contract law which I am currently conducting, some preliminary findings are characteristic: In over 250 contract law articles, books or chapters most of which have been published after 1980 the scholars with more than fifty citations are [in alphabetical order, since the findings are preliminary and although there is a vast disparity of almost 140 cita- tions between the first scholar(190)and the last]: Patrick Atiyah(Neoclassical) Randy Barnett (Consent/Libertarianism), Ronald Coase (Economics/Neo- Institutionalism), Arthur Corbin(Neoclassical), Melvin Aron Eisenberg(Neo- classical), Richard Epstein (Libertarianism/Economics), Grant Gilmore(Neo- classical/ Death of Contract "theory), E. Allan Farnsworth(Neoclassical), Lon Fuller(Neoclassical), Duncan Kennedy(Cls), Friedrich Kessler(Neoclassical), Anthony Kronman(Economics-Neoclassical), Stewart Macaulay(Relational- Empirical-Sociological), lan Macneil(Relational), Oliver W. Holmes(Classi cal), Richard Posner(Economics), Alan Schwartz(Economics), Robert Scott (Economics), Michael Trebilcock (Economics), Samuel Williston(Classical) The authors who immediately follow have also been heavily influenced by the theory of others or have formulated theories of their own( Calabresi, Feinman, Fried, Friedman, Goetz, Horwitz, Leff, Llewellyn, Williamson, etc. ) Below them on this list. there are about 20 other scholars with more than 25 citations the"less theoretical"among them being robert Hillman, Robert Summers and Richard Speidel, who are of course not innocent of theory! The first three books cited are (in alphabetical order) Frieds Contract as Promise, Gilmore's The Death of Contract and Posner's Economic Analysis of Law. The treatises of Corbin and Williston follow. The first four articles are (in alphabetical order) Coase's"The Problem of Social Cost", Epstein,'s"Unconscionability" Fuller Perdue's"The Reliance Interest in Contract Damages"(cf. Barnett 1995: 3)and Macaulay's"Non-Contractual Relations in Business. Any comments are redun 7 In a broadly discussed and much-disputed essay, Judge Edwards accused con temporary American legal theory of being impractical and overly theoretical thus neglecting the two important functions of the law school: to teach students

Commentaries on Law & Economics, Vol. 2 ( 2002) 5 retical issues, even when they set out to solve particular doctrinal problems (cf. Cheffins 1999: 199-200).7 ever, the similarities go beyond the mainstream status. I would characterize the neoclassical theory of contracts as a rather amateurish attempt on the part of con￾tract scholars (in Common law under the legacy of “equity” and in Roman Civil law of ius praetorium) to keep in touch with the developments of economic the￾ory after World War II (i.e. economic neoclassicism) rather than to “socialize” contract law. This is mostly true for the U.S.A., but also for Europe. See Hatzis (2000c). 6 From an ongoing citation study on American contract law which I am currently conducting, some preliminary findings are characteristic: In over 250 contract law articles, books or chapters most of which have been published after 1980, the scholars with more than fifty citations are [in alphabetical order, since the findings are preliminary and although there is a vast disparity of almost 140 cita￾tions between the first scholar (190) and the last]: Patrick Atiyah (Neoclassical), Randy Barnett (Consent/Libertarianism), Ronald Coase (Economics/Neo￾Institutionalism), Arthur Corbin (Neoclassical), Melvin Aron Eisenberg (Neo￾classical), Richard Epstein (Libertarianism/Economics), Grant Gilmore (Neo￾classical/“Death of Contract” theory), E. Allan Farnsworth (Neoclassical), Lon Fuller (Neoclassical), Duncan Kennedy (CLS), Friedrich Kessler (Neoclassical), Anthony Kronman (Economics→Neoclassical), Stewart Macaulay (Relational￾Empirical-Sociological), Ian Macneil (Relational), Oliver W. Holmes (Classi￾cal), Richard Posner (Economics), Alan Schwartz (Economics), Robert Scott (Economics), Michael Trebilcock (Economics), Samuel Williston (Classical). The authors who immediately follow have also been heavily influenced by the theory of others or have formulated theories of their own (Calabresi, Feinman, Fried, Friedman, Goetz, Horwitz, Leff, Llewellyn, Williamson, etc.). Below them on this list, there are about 20 other scholars with more than 25 citations, the “less theoretical” among them being Robert Hillman, Robert Summers and Richard Speidel, who are of course not innocent of theory! The first three books cited are (in alphabetical order): Fried's Contract as Promise, Gilmore's The Death of Contract and Posner's Economic Analysis of Law. The treatises of Corbin and Williston follow. The first four articles are (in alphabetical order): Coase's “The Problem of Social Cost”, Epstein's “Unconscionability”, Fuller & Perdue's “The Reliance Interest in Contract Damages” (cf. Barnett 1995: 3) and Macaulay's “Non-Contractual Relations in Business.” Any comments are redun￾dant. 7 In a broadly discussed and much-disputed essay, Judge Edwards accused con￾temporary American legal theory of being impractical and overly theoretical, thus neglecting the two important functions of the law school: to teach students