Abuse of Rights and Freedom of Contract in Comparative Perspective: A Legal and Economic Analysis

22 Pages Posted: 7 Aug 2012

See all articles by Marco Farina

Marco Farina

University of Pavia

Demetrio Maltese

"A. Sraffa" Department of Law - Bocconi University; Università degli Studi di Brescia

Date Written: August 6, 2012

Abstract

After a succinct preamble about the developments of the abuse of right doctrine in historical and comparative perspective, the authors describe the main sources of Italian law in this field. Great emphasis is placed on the analysis of decision n. 20106/2009 of the Italian Supreme Court, dealing with a termination clause in a distributorship agreement.

Highlighting the relevance and impact of judicial review on the merits of a contractual relationship, also in light of the principle of certainty of law, the authors provide a comparative outlook of the solutions envisaged in other legal systems, namely in the U.K., the U.S. and France.

The abuse of right doctrine is furthermore investigated under a broader perspective, studying the always-controversial linkage between contract, market and institutions. Finally, the authors tackle the issue of contract incompleteness, especially with regard to agreements of duration, lingering upon the integrative role which judges are called on to play in the light of the system’s general principles and the duty of good faith and fair dealing.

Keywords: abuse of rights, good faith, withdrawal, relational contract, Renault

JEL Classification: C72, D63, D82, K12, K20, L14

Suggested Citation

Farina, Marco and Maltese, Demetrio, Abuse of Rights and Freedom of Contract in Comparative Perspective: A Legal and Economic Analysis (August 6, 2012). Opinio Juris in Comparatione, No. 1/2012, Paper No. 2, Available at SSRN: https://ssrn.com/abstract=2125519

Marco Farina

University of Pavia ( email )

Corso Strada Nuova, 65
27100 Pavia, 27100
Italy

Demetrio Maltese (Contact Author)

"A. Sraffa" Department of Law - Bocconi University ( email )

Via Roentgen, 1
Milan, MI 20136
Italy

HOME PAGE: http://didattica.unibocconi.eu/docenti/cv.php?rif=167391

Università degli Studi di Brescia ( email )

Contrada Santa Chiara, 50
Brescia, BS 25122
Italy

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
484
Abstract Views
1,894
Rank
108,159
PlumX Metrics