Judge-Made Contracts: Reconstructing Unconscionable Contracts
Although unconscionability is thought to be a nearly exhausted topic, there are still some disputed issues regarding its remedies. This paper discusses one of these issues, namely the judicial reconstruction of unconscionable contracts or unreasonable contract clauses. More concretely, in many legal systems the judge is granted, at least in some cases, the power to revise the terms of unconscionable contracts: he may substitute "reasonable" terms for the "unreasonable" ones so that the contract remains valid. Nevertheless, an attempt by the judge to adjust an "unreasonable" term will create opportunism from both sides and will lead to arbitrary judicial decisions, thus upsetting the security of transactions and inevitably leading to higher transaction costs. Hence we argue that, with a few exceptions pertaining to monopoly or collusion situations, the judge should only decide between enforceability and non-enforceability of the contract or the clause. If the parties want their void contract to be enforced they can always renegotiate after the court decision and modify it themselves.
Duress in Contracts: An Economic Analysis forthcoming in Contract Law and Economics, ed. Gerrit de Geest (Cheltenham: Elgar 2009) (Elgar Encyclopedia of Law and Economics 2 nd ed. vol. 2)
The purpose of this paper is to provide an overview of the economic analysis of contractual duress. The focus will be on the distinctive features of the economic perspective on the duress doctrine, as developed in the theoretical literature of law and economics. Before discussing the results of economic analysis, the legal background and some non-economic theories of duress are briefly presented.
La inseguridad jurídica en normas de contratación estatal
It is established by different studies that the issue of government procurement has been marred by several factors, the test objective to publicize these factors, we take as starting point the constant conflict between the branches of government to try and organize this subject; will collect and analyze diverse regulatory and case material in order to achieve evidence and demonstrate the different concepts of constant change that produces excessive regulation of the subject procurement and is in turn causing rapid changes that result in legal uncertainty for our law on the Contract Status.