ABSTRACT
Default rules are legal norms that govern unless parties contract around them. This chapter discusses them as a tool of regulatory contract law. It delineates defaults from mandatory rules and non-binding guides, and shows how parliaments and courts generate, interpret, and recalibrate them across Civil and Common Law traditions. It widens the lens to non-state sources and international regimes to reveal how defaults influence behaviour and markets beyond statute and case law. On design, it distinguishes majoritarian defaults, which mirror hypothetical bargains; purpose-driven defaults, which pursue public policies while preserving justified opt-outs; and penalty defaults, which induce information revelation. A key lever is stickiness, operationalised by altering rules that determine how parties may deviate from the default arrangements. The chapter also addresses semi-defaults common in consumer protection, where deviation is limited in one direction. Finally, the chapter highlights the pervasiveness of defaults by exploring default regimes in cross-border contracting: choice of law and choice of court oftentimes rely on defaults, and party autonomy can even turn domestically mandatory rules into defaults within the limits of the conflict of laws rules and public policy.
Ungerer, Johannes, Default Rules (March 11, 2026). Forthcoming in The Oxford Handbook of Regulatory Contract Law (edited by Atamer and Hellgardt).
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