Νοn-Classical Paradigms in Contract Law in the American, European and Russian Legal Doctrines

  • A. E. KIRPICHEV Russian State University of Justice, Russia
  • R. V. SHAGIEVA Russian Presidential Academy of National Economy and Public Administration, Russia
  • S. V. NIKOLYUKIN Russian State University of Justice, Russia
  • N. E. BORISOVA Moscow City Pedagogical University, Russia
  • V. V. RALKO Russian Academy of Advocacy and Notaries, Russia

Abstract

Thematic justification: In many regions of the world, scholars have renewed a discussion on the nature and properties of contracts as a legal phenomenon, leading to the emergence of so-called ‘non-classical theories of contract’: contract as a promise, relational contract, contract as a network etc.


This article’s aim is to compare non-classical approaches to contract and check the possibility of creating a modern holistic theory of contract. This article’s methodology is based on the functional method, the use of which provides a comparative perspective, meaning that each of the explored approaches to the theory of contract should be studied in the context of its causes and problems it solves.


The article systematizes problems solved by non-classical theories of contracts and concludes that the development of a new theory means the appearance of a new solution, not only for the problem for which it was designed but also for some others from the list. No theory solves all the problems of contract law. Numerous theories of the 20th and 21st centuries have shown the directions, in which it is necessary to carry out research and to seek approaches whose combinations and mutual critical evaluations will allow the formation of a met theory of contract law, the further development of which can lead to a dominant paradigm shift in response to the emergence of an integrative legal theory of contract viewed in a holistic manner as a multifaceted phenomenon.

References

[1] Akbari, S. 2015. Against the Reductionism of an Economic Analysis of Contract Law. Canadian Journal of Law & Jurisprudence, 28(2), 245-264. DOI: 10.1017/cjlj.2015.27.
[2] Barnett, R.E. 1992. Conflicting Visions: A Critique of Ian Macneil's Relational Theory of Contract. Virginia Law Review, 1175-1206.
[3] Barnett, R.E. 2011. Contract is Not Promise; Contract is Consent. Suffolk UL Rev., 45, 647.
[4] Berman, H.J. 1963. Justice in the U.S.S.R. An Interpretation of Soviet Law. Harvard: 450.
[5] Buckley, F.H. 2005. Just Exchange: A Theory of Contract. Routledge: 224
[6] Burton, S.J. 2013. A Lesson on Some Limits of Economic Analysis: Schwartz and Scott on Contract Interpretation. Indiana Law Journal,88, 339.
[7] Campbell, D., Collins, H. 2003.Discovering the implicit dimensions of contracts. Implicit Dimensions of Contract: Discrete, Relational and Network Contracts. Oxford: 25-50.
[8] Collins, H. 2005. Regulating Contracts. Oxford: 402.
[9] Efimov, A.V. 2017. Influence of Affiliation to Competence of the Bodies of Legal Entities. Property relations in the Russian Federation, 10, 82-83.
[10] Fried, Ch. 2015 Contract as promise: A theory of contractual obligation. 2nd ed. Oxford: 208.
[11] Galletti, S. 2014. Contract interpretation and relational contract theory: A comparison between common law and civil law approaches. The Comparative and International Law Journal of Southern Africa,47(2), 248-275.
[12] Gava, J. 2004. Do we need a hybrid law of contract? Why Hugh Collins is wrong and why it matters. The Cambridge Law Journal,63(3), 605-631.
[13] Gordley, J. 1991. The Philosophical Origins of Modern Contract Doctrine. Clarendon Press: 272.
[14] Kirpichev, A.E. 2014. Correlation between concepts ‘consumer contact’ and ‘obligation, connected with the entrepreneurship’: problems of theory and the implementation of law. Justice of the peace, 1, 20-24.
[15] Kirpichev, A.E. 2016. Non-classical Theories of Contract (contract-promise, discrete, relational and network contracts) in Context of the New Edition of the Civil Code of the Russian Federation. Laws of Russia: experience, analysis, practice, 2, 51-58.
[16] Klein, N.I. 1976. Organization of contractual-economic connections. Moscow: 192.
[17] Kondrat’ev, V.A. 2016. Conclusion of Contract. Russian justice, 1, 18-25.
[18] Kulakov, V.V. 2010. Obligation and complexity of its structure in the Russian civil law. Moscow: Walters Kluwer: 256.
[19] Leib, E.J. 2013. What is the Relational Theory of Consumer Form Contract? Revisiting the Contracts Scholarship of Stewart Macaulay: On the Empirical and the Lyrical, 259-88.
[20] Luhmann, N. 2004. Law as a Social System. Oxford University Press: 498.
[21] Lyotard, J.-F. 1979. La Condition postmoderne. Rapport sur le savoir. Paris: éditions de Minuit: 128.
[22] Macneil, I. 2003. Reflections on Relational Contract Theory after a Neo-classical Seminar. Implicit Dimensions of Contract: Discrete, Relational and Network Contracts. Oxford: 207-219.
[23] Macneil, I. 1978. Contract: Adjustment of Long-term Economic Relations under Classical, Neoclassical, and Relational Contract Law. Northwestern University Law Review, 72, 854.
[24] Michaels, R. 2006. The Functional Method of Comparative Law. The Oxford Handbook of Comparative Law: 339-382.
[25] Minda, G. 1995.Postmodern Legal Movements: Law and Jurisprudence At Century's End. New York; London: NYU Press: 362.
[26] Oigenzikht, V.A. 1984. Untypical relations in civil law. Dushanbe: 128.
[27] Samoy, I. 2014. L’interdépendance contractuelle Case Notes.European Review of Private Law,22(2), 251-252.
[28] Samuel, G. 2016. Epistemology and Method in Law. Routledge: 416.
[29] Schwartz, A., Scott, R.E. 2003. Contract theory and the limits of contract law. Yale Law Journal, 541-619.
[30] Suleimenov, M.K. 1980. Structure of contractual-economic connections. Alma-Ata: 224.
[31] Teubner, G. 2011.Networks as connected contracts: edited with an introduction by Hugh Collins. Bloomsbury Publishing: 314.
[32] Zankovskiy, S.S. 2012. Entrepreneurial obligations. Moscow: 259.
Published
2018-09-30
How to Cite
KIRPICHEV, A. E. et al. Νοn-Classical Paradigms in Contract Law in the American, European and Russian Legal Doctrines. Journal of Advanced Research in Law and Economics, [S.l.], v. 9, n. 5, p. 1660-1666, sep. 2018. ISSN 2068-696X. Available at: <https://journals.aserspublishing.eu/jarle/article/view/3383>. Date accessed: 25 feb. 2024. doi: https://doi.org/10.14505//jarle.v9.5(35).18.