ECONOMIC ANALYSIS OF LAW AS A GUIDE TO POST‐COMMUNIST LEGAL REFORMS: THE CASE OF HUNGARIAN CONTRACT LAW¹

The Anti-Theoretical Nature of Civil Law Contract Scholarship and the Need for an Economic Theory

“…in the last decade, for two reasons: (a) the triumph of the free market and capitalism in Europe-at-large which led, in Eastern Europe, to a drafting or revision of civil codes (esp. contract and property law) that are better-suited for free market economies and more conducive to economic development (Ostas 1992;Ostas &Leete 1995 andRubin 1994;cf. Atiyah 1995: 27-34), and (b) the growing concern of the European Union for the unification of European private law in general and contract law in particular, as well as the trend toward the internationalization of contract law (Farnsworth 1990: 227-230).…”

“…47 See e.g. Mattei & Pardolesi (1991) and Ostas & Leete (1995). Based on similar arguments, Reinhard Zimmermann advocates a unified approach "that uses the common past as the most obvious, and natural, point of reference for analyzing and understanding the development of modern law" (Zimmermann 1994: 222), an approach reminiscent of the historical school.…”

“…57 In Greek legal scholarship, there is an ongoing controversy surrounding the nature of judge-made legal rules 58 and the relation of stare decisis to custom. According to Papantoniou (1983: 43), "[t]oday the primary source for the creation of custom is the 55 See Ostas (1992), Ostas & Leete (1995), Brietzke (1994), Hay et al (1996), Jiang (1996), Rubin (1994;, Butler (1998), Posner (1996d1997b;1998c) and Hatzis (1999b). See also generally Easterbrook (1989).…”