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Abstract:
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In this chapter, I compare the role of the creditor’s (promisee’s) conduct in contractual relationships in
US and European legal systems. Different approaches to comparative negligence and mitigation are
first considered, and then a more general analysis of doctrines dealing with the creditor’s position in
the contractual relationship and the role of cooperation is carried out. In this area, legal systems
display significant divergences – partly rooted in their historical antecedents, and partly related to
different concepts of contracts and contractual relationships. Continental European systems (with
significant differences between Germany and France) recognize a strong role for comparative
negligence and the duty to cooperate, while common law jurisdictions (with important differences
between England and the US) limit the scope of comparative negligence and the duty to cooperate
whilst attributing a wider role to the duty to mitigate
In this chapter I have shown that the great divergence concerning the rule of comparative negligence
in contract law between England and the US on the one hand, and among European continental
systems with the exception of France on the other, needs to be rethought. A wider range of doctrines
beyond mitigation should be considered on the ground that they act, at least partially, as functional
equivalents to comparative negligence.
The divergence is reduced if we move away from specific doctrines to the general principle of
creditor’s cooperation. This cooperation is relevant in many doctrines of contract law in the US, and to
a lesser extent, England, although it has different scope in these legal systems. In England, where
comparative negligence has limited application, the doctrines of causation and foreseeability provide
some recognition of creditor’s conduct and apportionment of losses The narrow and very limited
recognition of the rule of comparative negligence in the US is ‘compensated’ for by reference to other
apportionment techniques in different doctrines such as those fostering reasonable reliance, mitigation
and foreseeability.
The potential explanation for these divergences may vary if we consider the rule of comparative
negligence or the principle of creditor’s cooperation and its apportionment of losses regime as
encompassing different doctrines. The recognition of the principle, under different doctrines but with
different weight, does not eliminate the divergence, rather forces us to rethink its reasons. The lack of
comparative negligence in the US, when considered along with the deployment of other forms of risksharing
and apportionment of losses stemming from breach of contract, conforms to the idea that
contract law is mainly directed at risk allocation. In European continental systems, the recognition of a
general rule of comparative negligence and mitigation delineates a general principle based on the law
of obligations, applicable to both contract and tort. Contractual relationships are generally
characterized by a legal framework fostering higher level of cooperation including re-allocation
between time of contract and time of performance. These divergences have been explained with
reference to different business practices and community norms which legal systems have internalized.
This ‘sociological’ perspective can partly shed light on these divergences but needs to be
complemented by a deeper understanding of the core function of contract law and business rules. |