Creditor’s Fault: In Search of a Comparative Frame

EUI Working Papers Law No. 2009/15

18 Pages Posted: 19 Feb 2010

Multiple version iconThere are 2 versions of this paper

Date Written: November 09


In this chapter, I compare the role of the creditor’s (promisee’s) conduct in contractual relationships in US and European legal systems. Different approaches to comparative negligence and mitigation are first considered, and then a more general analysis of doctrines dealing with the creditor’s position in the contractual relationship and the role of cooperation is carried out. In this area, legal systems display significant divergences – partly rooted in their historical antecedents, and partly related to different concepts of contracts and contractual relationships. Continental European systems (with significant differences between Germany and France) recognize a strong role for comparative negligence and the duty to cooperate, while common law jurisdictions (with important differences between England and the US) limit the scope of comparative negligence and the duty to cooperate whilst attributing a wider role to the duty to mitigate In this chapter I have shown that the great divergence concerning the rule of comparative negligence in contract law between England and the US on the one hand, and among European continental systems with the exception of France on the other, needs to be rethought. A wider range of doctrines beyond mitigation should be considered on the ground that they act, at least partially, as functional equivalents to comparative negligence. The divergence is reduced if we move away from specific doctrines to the general principle of creditor’s cooperation. This cooperation is relevant in many doctrines of contract law in the US, and to a lesser extent, England, although it has different scope in these legal systems. In England, where comparative negligence has limited application, the doctrines of causation and foreseeability provide some recognition of creditor’s conduct and apportionment of losses The narrow and very limited recognition of the rule of comparative negligence in the US is ‘compensated’ for by reference to other apportionment techniques in different doctrines such as those fostering reasonable reliance, mitigation and foreseeability. The potential explanation for these divergences may vary if we consider the rule of comparative negligence or the principle of creditor’s cooperation and its apportionment of losses regime as encompassing different doctrines. The recognition of the principle, under different doctrines but with different weight, does not eliminate the divergence, rather forces us to rethink its reasons. The lack of comparative negligence in the US, when considered along with the deployment of other forms of risksharing and apportionment of losses stemming from breach of contract, conforms to the idea that contract law is mainly directed at risk allocation. In European continental systems, the recognition of a general rule of comparative negligence and mitigation delineates a general principle based on the law of obligations, applicable to both contract and tort. Contractual relationships are generally characterized by a legal framework fostering higher level of cooperation including re-allocation between time of contract and time of performance. These divergences have been explained with reference to different business practices and community norms which legal systems have internalized. This ‘sociological’ perspective can partly shed light on these divergences but needs to be complemented by a deeper understanding of the core function of contract law and business rules.

Suggested Citation

Cafaggi, Fabrizio, Creditor’s Fault: In Search of a Comparative Frame (November 09). EUI Working Papers Law No. 2009/15, Available at SSRN: or

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