Droit et économie des contrats

The present work is a priori far removed from competition law. In fact, it is useful for competition law practitioners and academics to look at the cross-examination of lawyers and economists on the contract, a legal instrument at the heart of the competitive analysis and its temperament constituted by efficiency gains. This publication is the result of a series of conferences organized by the Chair of Regulation at Sciences Po at the Cour de Cassation in 2006, under the direction of Christophe Jamin, in the wake of the combined action of Guy Canivet, at the time First President of the Cour de Cassation, and Marie-Anne Frison-Roche, both convinced of the need for jurists to take greater advantage of the economic analysis of law. We know to what extent the neo-liberal inspiration that originally inspired the Law and Economics movement is now outdated. Economic thinking is developing into a multitude of currents, beyond an agreed political divide between a utilitarianism on the right and a welfare state reserved for the left. It provides the jurist, and precisely the judge, with very diverse analytical grids that can only enrich his or her thinking on a case-by-case basis. It is up to the jurist to draw on the toolbox of economics to support his or her thinking. This is why this book does not offer any theoretical developments. The approach is more modest and is intended to be an experimental one on specific subjects.

Of course, it was necessary to agree beforehand on the fundamental question of what is a contract. It is interesting, and perhaps mischievous, to note that the sacrosanct principle of the autonomy of the will, as the foundation of the contract, is now perceived as the object of the lawyer’s sterile errors (C. Atias, p. 3). One cannot help recalling that most of the twentieth century became bogged down in a dogmatic approach. Today’s concerns relate to contractual time and contractual references, which leads the author to consider that the contract is one of the ways of managing ignorance and the freedom to use available information; this is why it cannot simply be conceived of as an intangible law&#8221 . Thus, the market process set in motion by the initial consequences of the actors, can liberate flows of information to the benefit of the contracting parties by the simple fact of participating in the market. The whole question is to what extent the stability of the contractual link must be fostered in order to satisfy legitimate expectations. Singularly, the economist offers the presentation of one of the most beautiful problems that taunt his fellow students, namely the incompleteness of the contract both in its starting point and in its point of arrival (O. Favereau). The two traditional pillars of the notions of stock exchange and the rationality of homo oeconomicus have not ceased to be weakened or relativized. This is why the renegotiation of contracts has from the outset appeared to be an unstoppable outcome. In any event, the economist has set about managing the most negative consequences of this dual relativisation. Thus, the conventionalist approach to incompleteness proves to be quite close to the vision of the contract developed by Demogue in his description of the contract as a small company (1923) or that of Mac Neill in the mini-company or mini-State (1978), or even that of Supiot in the inspiration of the Japanese, a sort of contextual reciprocity norm which imposes the maintenance of harmony between the parties, as should prevail in framework contracts or relational contracts (2005). For the economist, the two challenges thus lie in the treatment of power and inequalities, about which he states: "one must be capable of society to be capable of contract".

Ultimate; in this conventionalist approach: the rationality of homo oeconomicus cannot be confined to a narrow calculation of the individual, but must take into account the dimension developed in social psychology, which emphasizes the individual’s attachment to a collective entity (family, company, nationality, party, etc.). This densifies the centre of gravity of the contract in its raison d’être and, therefore, the economic trade-off made in the cost-benefit analysis of the individual-social being. It is in this interaction between small society and large society that the force of law in support of the contract takes on its full meaning and that the effectiveness and fairness of the contract must be interpreted.

This first of the dialogues between jurists and economists, the founding stone of the work, is a promise of mutual enrichment that is not denied by the following ones. They will be mentioned more briefly. The vices of consent and the moral hazard through the jurisprudence of fraudulent reluctance are the subject of a remarkable exercise by the jurist Dimitri Houtcieff and the economist Giuseppe Dari-Mattiacci, in which the asymmetry of information is apprehended jointly in order to measure the contours of the obligation to contract in good faith. The discounting of the value, with regard to the restitution of physical things after cancellation of the contract, marks a more differentiated approach: on the one hand, the economist is turned, with Christian Gollier, towards a prospective approach integrating the potential profitability of an investment; on the other hand, the lawyer, with Yves-Marie Serinet, remains essentially driven by a retrospective vision of the return to the former state. The unilateral determination of the price is also an opportunity for differentiation. It leads Christophe Jamin to question the appropriateness of authorizing the termination of the framework contract without requiring proof of abuse, a hypothesis that economist Stéphane Saussier rejects in the name of transaction costs and the need for security linked to the importance of certain investments.

The points of view are similar on Penal Clauses and Incentive Damages : Saïd Souam demonstrates that a maximum penalty is not always an optimal penalty and he is gladly joined by the jurist Yves-Marie Laithier for whom the determination of the incentive threshold of private penalties is an essential condition to preserve an economic dynamism. On the other hand, the dialogue is more difficult on the subject of "The effective break". The economist Claude Fluet has endeavoured to limit effective termination to the sole hypothesis of incomplete contracts which, because of their nature, give rise to a contractual non-performance which is desirable from the point of view of both contracting parties at the same time. This delimitation is not really discussed by Judith Rochfeld, who rejects from the outset effective termination on a general level, invoking the dominant trend of the preservation of the contractual link.

As for the "Contract for something outside commerce", it is the subject of the most astounding, the most troubling, but also the most stimulating article for the lawyer. In fact, regarding the contract on human organs, presented by the jurist Jean-Pierre Marguénaud, Frédéric Jenny dares to use the expression "market for human organs". Based on very rich factual data, scrupulously quantified in numerous works, this author reveals how economists have been able to develop, in very tight arguments, philosophically high concerns before proposing the very nuanced hypothesis of a highly limited and tightly controlled commercial sphere where exchange, and not sale, could be admitted.

On less sensitive ground, the following dialogue allows us to return to the more mundane contractual relations between the company and its customers. Jean-Pascal Chazal invites us to draw the epistemological lessons from the Chronopost&#8221 case, which dealt with the limitation of liability clause contradicting the essential obligation of the contract. In this context, economist Claude Ménard asks: What does it mean to commit oneself? His reflections include preliminary developments on the incompleteness of the contract and its impact on the credibility of the undertaking, but also on the credibility of the sanction. The economist surprises and, contrary to all the usual clichés that might be attributed to him, supports the idea, instead of a spontaneous incentive based on reputational concerns, that a threat of severe sanction by the judge is required to preserve the full economic meaning of the undertaking. Should it not finally be agreed that well-understood efficiency reaches contractual justice more often than one might think?

Finally, the book ends with a very stormy debate, due to the Commission’s communication which, in 2001, had the effect of a thunderbolt in France, and which is now proving to be more appeased: "Harmonisation of contract law in Europe". This title is misleading. It is in fact the elaboration of a European contract law, unfortunately reduced today to the ambition of a simple Common Frame of Reference (CFR).

Its economic opportunity is discussed by Bénédicte Fauvarque-Cosson and Bruno Deffains. One can object to the flexibility and adaptability inherent to heterogeneous solutions, the resistance due to learning effects. Nevertheless, for both authors, the arguments prevail: the external effects between states, economies of scale and reduced transaction costs, the achievement of market integration and the impact of international globalization. Beyond the technical approach to the integration of a single market, it would also be interesting to measure the extent to which the political project of the European Union, in its identity dynamic, is capable of nourishing an economic dynamic. It is reasonable to think that, far from sticking to a competition between contract laws by favouring the traditional modes of diversity management specific to private international law, we should rather resort to comparative law to create a common legal culture in the European Union. In this respect, the competition law experts are certainly ahead of the civil law experts.

However, in order to enrich their own analyses, diagnoses and solutions, they cannot ignore the potentialities of contract law offered by the most avant-garde French doctrine to which this book pays tribute.