Complementary contract interpretation, base of the contract, reconstruction of the fully specified contract and fair distribution of the total surplus from a contract

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Chapter 13 in The Economic Analysis of Civil Law, 2022, pp 378-415 from Edward Elgar Publishing

Abstract: From an economic point of view, an ex-ante assessment is important: the decisive factor is whether the contract is expected to be mutually beneficial to both parties when it is concluded. An encroachment on contractual freedom should only be justified if the contract does not fulfil this condition from the outset i.e., if it cannot ex-ante provide an advantage to the contracting parties. If it only becomes subsequently apparent that a contract was merely of use to one party, then this alone should not justify a correction of the contractual content. This model assumes that the parties have identified all conceivable and possible risks and have rationally weighted and distributed them and concluded the contract in full knowledge of the risks.

Keywords: Economics and Finance; Law - Academic (search for similar items in EconPapers)
Date: 2022
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