Law and Economics for Civil Law Systems

Law and Economics for Civil Law Systems

Ejan Mackaay

Ejan Mackaay offers a comprehensive look at the essential points of economic reasoning, the Coase Theorem, and legal institutions such as intellectual property, extra-contractual civil liability and contracts. The book’s structure mirrors the way law is taught in civil law countries, with structured presentations, references to civil code articles paired with non-technical explanations, and limited reliance on graphs. This English-language version builds on the success of the author’s 2008 French-language textbook on law and economics from a civil law perspective.

Chapter 11: Contract

Ejan Mackaay

Subjects: law - academic, comparative law, law and economics


On my way home from work, I pass an outdoor fruit stand, which is open during spring, summer and autumn until the first snowfall. I stop to buy some apples, which I choose individually; the stand owner, whom I know well being a regular customer, weighs them and tells me the price, which I pay in cash. The role of the law is minimal here: the possibility of inspecting the apples and the money to pay for them is sufficient for us to reach our joint objective, which is to procure a gain to both the seller and me. For the seller, the cash – in fact, what she can buy with it – is worth more than the apples; for me it is the opposite. In economic parlance, the contract has allowed resources to move to higher valued uses. Things get more complicated when the two parties do not perform their obligations simultaneously; or where their prestations – as civil law English terms their performance1 – are separated in space; or where the qualities of the object to be bought do not reveal themselves upon simple inspection; where parties are not engaged in a long- term relationship; where the prestations involve a number of objects to be produced or transported, or depend upon contingencies that were uncertain at the time of contracting; or where the value to the buyer of what the seller is to deliver depends upon the care he takes of it.

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