Contracting in modern world
So the preference of firms for simultaneous exchanges is justified by taking this need into account: as in other historic periods, when the legal constraint and interest in reputation did not appear to be effective deterrents for avoiding improprieties or even instruments suitable for removing the harmful consequences caused by these improprieties, so today when the “costs” of trials and the scant interest in reputation do not encourage respect for the rules of cooperation and loyalty, the exchange system is implemented essentially through contractual operations that require the simultaneous performance of the services of the exchange.
2. Conclusions.
We have seen how the contract has changed over the last century, both in the way it is concluded and in its content. The motivations we have recognized seem economic and not mere whims, or worse, political programs of businessmen banding together. This does not mean however that contract law should remain the same. While on the one hand we need to be cautious in reform, as critics of the theory of the adverse selection of contractual clauses demonstrated with regard to the conviction that the courts should intervene (for example, in 1993 the European Commission adopted Directive 13/93, intended to invalidate all clauses which, to the consumer’s harm, cause a significant imbalance between the parties’ rights and obligations. Now, in light of the work by Posner and Bebchuk, this arrangement seems to risk ultimately harming those who were to be protected, i.e., consumers. The risk of unintended consequences, when a phenomenon is not fully understood, always hangs over the work of the regulator (or legislature); in other cases, it is possible to proceed ahead. From a liberal and economic-efficiency standpoint, we should ask what the consumer is requesting from the State. Does the consumer want to delegate control over contractual clauses to the State? Does he want imperative clauses, i.e., which the parties cannot amend? Does he want some regulation other than error or withdrawal imposed from above? We will attempt to answer these and other questions in order to respect the sovereignty of the consumer and of liberal principles.
The initial question remains unanswered: will the information technologies change the situation as it is today? Will the consumer’s ability to read proposed contracts on the Internet at any time, i.e., when his time has the least value, lead to greater awareness of them, and to more comparison of them? The ease with which contractual alternatives can be explained, even in the case of standardized alternates, lead to more personalized contracts (consider the possibility already today for Internet buying the possibility of purchasing insurance coverage or choosing a type of transport service). And will the exchange of information which the Internet allows among consumers make it possible to have more knowledgeable buyers? In this paper, all these questions remain unanswered.
* I wish to thank greatly Carlo Drago and Giacomo Rojas Elgueta for very helpful comments. All remaining mistakes are my sole responsibility.
