Comparing contract laws

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Chapter 4 in Comparative Law, 2024, pp 70-97 from Edward Elgar Publishing

Abstract: This chapter delves into mainstream and critical approaches to the comparative law of contracts. Mainstream approaches focus on the common/civil law divide, private autonomy, and the functional method. They revolve around the convergence of legal families. Critical approaches introduce anthropological, sociological, and economic perspectives and focus on social relations, coercion, and power implied in contractual transactions. Progressive critiques of contract law reject the notion of market individualism and highlight instead the denial of social conditions and unequal bargaining power among contracting parties. They also discuss contractual framing as negative world-making and uncover how legal ideologies obscure power structures. The chapter is grounded in the claims of Mary Clark and Anna Netrebko, two women involved in two different contractual disputes that highlight the issue of specific performance and exemplify the alternatives between specific performance and monetary damages. It also includes feminist and critical race theory insights, revealing how contract law historically perpetuated oppression among women and racialized workers. This comprehensive analysis prompts a critical examination of contract law’s ideological foundations, shedding light on its implications for social justice and power dynamics within contractual relationships.

Keywords: Law - Academic (search for similar items in EconPapers)
Date: 2024
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