DESENHO CONTRATUAL EM PERSPECTIVA COMPARADA: REFLEXÕES SOBRE A RELAÇÃO ENTRE TIPIFICAÇÃO LEGAL E INOVAÇÃO CONTRATUAL

• Autor(a) principal: Pargendler, Mariana
• Data de Publicação: 2016
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista da Faculdade de Direito UFPR (Online)
• Texto Completo: https://revistas.ufpr.br/direito/article/view/44079
• topic: direito privado; direito contratual; direito comparado; análise econômica; Desenho contratual. Tipos contratuais. Common law. Análise econômica.; Contract design. Contract types. Common law. Economic analysis.

The differences in the style of contracts used in civil law and common law systems are well known. Traditionally, Anglo-Saxon agreements are longer, as well as more tailored and detailed, than those emerging from the civil-law tradition. However, the existing literature fails to provide a satisfactory explanation for this phenomenon. This article examines how the prominent role of contract types in the civil law tradition, and their lesser role in common law systems, affects the patterns of contract design observed in business practice. From a positive perspective, the Anglo-Saxon origin of a significant number of atypical contracts – such as the so-called “-ing” contracts (leasing, franchising, engineering, among others – suggests that the legal tradition may play an important role in shaping contract design. From a normative perspective, there is a tradeoff between a reduction in the transaction costs brought about by legislative contract types, on the one hand, and the disincentives created to innovation in contractual forms, on the other. Finally, the article concludes by reflecting on the future of drafting techniques in an era of globalization and on the possible role of the state in inducing contract innovation in the civil law tradition.