Economic Analysis of the Contract Theory from A Legal Perspective.. The Probable and Improbable: A comparative critical study from the perspective of the Latin School
Prof. Mohammad Arfan Al Khatib
Professor of Civil Law
Law Department – Ahmed bin Mohammed Military College – Doha – Qatar
Faculty of Law – University of Damascus – Syria
The research topic concentrates on providing a legal reading for the economic analysis of the contract theory from a legal perspective, within the philosophy of the Latin School as represented by the French Civil Law, with projection approach on the Kuwaiti Civil Law, in an attempt to illustrate the legal stand of this economic reading, whether in concurrence or discrepancy. In the first part, we discussed the probability of looking into the legal rule as an economic indicator, in particular, as related to the two stages of concluding and implementing the contract. In the second part, we discussed the case in which the legal rule cannot be weighed economically due to its value and ethical dimension, as a parameter for justice rather than a means to maximize riches and benefits, i.e. the cases of both the performance and damages.
The research reached the conclusion that the economic analysis approach represents nowadays an added value to the legal thought. In the legal transactions, the economic theory has its side presence in the framework stage of concluding and implementing the contract; proving the possibility of connecting the economic theory with the legal theory in understanding the contract philosophy in these two stages. At the same time, this reciprocal relationship between law and economy is negated in the case of the performance and damages.
It is not possible to adjust the performance process by implementation by way of compensation; and consequently, mixing between the value dimension of implementation and the economic value of compensation. In addition, the research emphasizes the approach aspects between the French and Kuwaiti legal thoughts regarding the issue of the economic analysis of the contract, particularly, the topic of concluding and implementing the contract, regardless of some insignificant differentiations. At the same time, the research displayed the legal aspects of differences in looking into the cases of the performance and damages, particularly, the legal adjustment for each of them, in separation between the concept of the performance as an origin in the legal commitment, and damages as an origin in penalty for default of implementation in the French civil legislation, and approaching damages within the implementation regulations as a form of implementation in the Kuwaiti civil legislation.
Keywords: Economic analysis of law, Contract theory, Legal justice, Economic justice, French civil law. Kuwaiti civil law.