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When you look at contract law in the USA, it is almost impossible to escape the economic analysis of law , also called Law and Economics (LAE). It is probably the dominant academic style of US contract theory, even if it does not seem to have a strong influence in contractual practice.¹ LAE does not have the same weight in Europe, where its role in law school curriculum remains sparse,² nothwithstanding a possible trend to use economic analysis of law , evidenced by a growing number of references to LAE in scholarly writings, most notably about contract law.³In this essay, I will try to determine to what extent LAE can really influence the development of civil contract law. My field of analysis is thus limited: the idea is neither to discuss LAE as it is in the USA, nor to look at civil contract law de lege ferenda, nor to examine generally the use of economic reasoning to decide a case in civil law . Rather the goal is to form an opinion about the validity of transposing some US legal-economic theories de lege lata in civil contract law, as some European scholars try to do. My point is that the main issue here is the confrontation between efficiency , the value at the core of these theories, and the values founding civil contract law. After a general presentation of the problem, the analysis of this confrontation will be made using Swiss contract law as a representative example.

DOI: 10.1007/978-94-007-7110-9_9

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