ABSTRACT
This contribution to the Oxford Handbook of Regulatory Contract Law (Alexander Hellgardt and Yeşim Atamer eds, forthcoming) begins by analyzing the basic characteristics of the three most common modes of regulating contracts: disclosure duties, substantive default rules, and substantive mandatory rules. It then argues that there are no clear boundaries between these modes of regulation. The chapter further challenges the conventional understanding of the distinctive features of each measure – such as the notions that only mandates restrict the parties’ freedom, that only disclosures facilitate deliberative decision-making by the contracting parties, and that mandates, unlike disclosures and defaults – are ‘one-size-fits-all’ measures. Finally, it contests the assumption of a one-to-one correspondence between the underlying goals of regulation and the means of achieving them. In reality, all three measures – disclosures, defaults, and mandates – can be used to address information problems, reduce transaction costs, handle externalities, and so forth.
Zamir, Eyal, Disclosures, Defaults, and Mandatory Rules: Conceptions and Misconceptions (December 7, 2024), Oxford Handbook, Forthcoming.
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