Abstract:
This essay discusses various interpretations of the function of non-mandatory contract law and the ensuing requirements with regard to formulating its content adequately. After some preliminary remarks on non-mandatory contract law (Sect. 8.1) initially two theories are introduced: Friedrich Carl von Savigny’s theory based on the autonomy of contracting parties and the theory of Oskar Bülow and Rudolf Stammler focusing on heteronomous evaluations (Sect. 8.2.1). There follows a presentation of a classical economic perspective on contract law, which conceives of non-mandatory norms as means for reducing transaction costs and which upholds efficiency as the central standard (Sect. 8.2.2). Next, attention is turned on the behavioural economic analysis of non-mandatory contract law, and the fundamental possibility of using non-mandatory law as a nudging instrument to steer behaviour is introduced, making reference to two concrete examples of its application in labour law and in surety contract law. In conclusion, the most important findings are summarised (Sect. 8.3).
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Klaus Mathis and Philipp Anton Burri, Nudging in Swiss Contract Law? An Analysis of Non-mandatory Default Rules from a Legal, Economic and Behavioural Perspective in Klaus Mathis and Avishalom Tor (eds), Nudging – Possibilities, Limitations and Applications in European Law and Economics (2016).
First posted 2016-05-26 13:02:36
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