Wednesday, February 22, 2017

Varieties of Capitalism #3

Business Law

Liberal market economies (LME) and coordinated market economies (CME), meanings here, differ in business law. 

In essence there are two solutions to problems that arise from incomplete contracting. 

The first, the classical or common law approach, attempts to protect each party's freedom to contract. It assumes all market participants are sophisticated. Courts enforce a written contract as written, even when there appear to be bargaining imbalances or unanticipated contingencies. Practices in the LME of the USA and England fit here.

The second, the regulatory approach, focuses more on power imbalances within contracts. It attempts to police the distribution of risks within contracts, often to order to implement broad societal norms calling for fair of just fulfillment of contracts. Courts do this by prohibiting powerful market actors from delegating unspecified risks caused by contractual incompleteness to weaker market players. Courts will also attempt to "repair" contracts disrupted by unforeseen contingencies.  Practice in the CME of Germany fits here.

The author doesn't specifically address unilateral contracts. Such a contract is written by one party to it, and the other party accepts it as written. So imbalances are inherent. An insurance policy is a good example. When there are ambiguities in a unilateral contract -- in the USA and absent legal precedent -- the ambiguity is generally interpreted against the interest of the party who wrote the contract (contra proferentem). This is an exception to the general rule in the second paragraph.

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