Autore: Denozza, Francesco
Titolo: Mercato, razionalità degli agenti e disciplina dei contratti
Periodico: Osservatorio del diritto civile e commerciale
Anno: 2012 - Fascicolo: 1 - Pagina iniziale: 5 - Pagina finale: 40

The balancing of interests that justifiesthe special treatment traditionally reserved to commercial contracts relies on specific andobjective needs. The most recent trend to differentiate the regulation of contracts accordingto the subjective qualification of contractors relies instead on assessments regarding the involvedentities or individuals and the correct exercise of their rationality. The party's qualification(consumer, professional, investor, etc.) has a purely statistical meaning, it has the solepurpose of identifying individuals who are more likely to be in a situation where the exerciseof their rationality may be restricted by external phenomena, the so-called market failures. Inthis perspective, the function of contract law seems to end in ensuring the best conditions forthe actual application of agents' rationality. The financial crisis highlighted the limitations ofthis approach. The individuals involved acted in a way collectively ruinous but individuallyrational, and complex regulation intended to protect the rationality of this or that class ofagents has proved, from this point of view, totally ineffective. In short: intentional rationalityof individual agents did not merge in an overall rationality of the system. The law of contractsshould learn this lesson and give up not only the classical conception (which conceives contractlaw as a mere means to minimize the risks connected with trading) but also the dominantone in recent decades (which conceives contract law as a crutch with which to supportagents in situations of market failures) assuming instead that one of its tasks is to take careof the the consistency between the legal rules governing bargaining processes and the set ofroles and social relationships in which the contracting parties are embedded.




SICI: 2281-2628(2012)1<5:MRDAED>2.0.ZU;2-S
Testo completo: http://www.rivisteweb.it/download/article/10.4478/38406
Testo completo alternativo: http://www.rivisteweb.it/doi/10.4478/38406

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