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1、大 连 理 工 大 学 本 科 外 文 翻 译法国法律中的违约责任：在安全的期望值和有效性之间The breach of contract in French law: between safety of expectations and efficiency注：此处按照实际情况填写即可，打印（宋体、小四）阅后删除此文本框。学 院（系）： 专 业： 学 生 姓 名： 学 号： 指 导 教 师： 完 成 日 期： 大连理工大学Dalian University of TechnologyThe breach of contract in French law: between safety of
2、 expectations and efficiencyPierre GarelloFaculte dEconomie Applique, Universite de Droit, dEconimie et des Sciences d Aix-Marseille,3 Avenue Robert Schuman, Aix-en-Provence 13628, FranceAccepted 20 August 20021. Introduction: which path will lead us to a better understanding of French contract law?
3、Contracts are marvellous tools to help us to live in a world of uncertainty. They allow us to project ourselves into an unknowable future, to invest. Lawyers who have inspired the French Civil law and contributed to its evolution, as well as most lawyers in the world, have clearly perceived the nece
4、ssity to protect that institution. “The contract is, as far as the individual is concerned, the best forecasting instrument generating legal security, and the favored path to freedom and responsibility that is necessary for the flourishing of human beings in a society.”1Contracts are far from miracu
5、lous tools, however. If they make life easier, they do not necessarily make life easy. As the future unfolds, one or both contracting parties may be tempted, or compelled, to break his or her promise. But, the mere fact that the contract is running into difficulties does not force the law to do some
6、thing!2 It is only when one of the parties does not perform that the law (the court, the legislation), backed with coercive power, has to give an opinion, to decide the case. In order to do so some principles, or theories, are required to reach a judgment as to what is the best thing to do.The prese
7、nt study of the French contract law is based on the premise that, from a law and economics point of view, there exists basically two possible ways to address this concern: the first approach requires that whenever a problem arises, an assessment be made of all costs and benefits incurred by the part
8、ies. In other words, one must attempt to evaluate in a sufficiently precise way the consequences of the court decisionor of the rule of law under considerationfor both parties as well as for third parties (including potential future contractors). The lawthenand more precisely here, contract lawshoul
9、d aim primarily at providing the right incentives to contracting parties, where by “right incentives” one means incentives to behave in such a way that the difference between social benefits and social costs be maximized. It will be argued below that French contract law sometimes follows this approa
10、ch.The second possible attitude looks, apparently, pretty much like the first. The guiding principle is again that the law should provide to members of the society the right incentives. But one must immediately add that the judgeor the legislator, or the expertis not in a position to evaluate and co
11、mpare the social costs and benefits of alternative rules of law. He or she just does not know enough. One does not know, for instance, all the effects of a rule that would allow one party to breach a contract, without the consent of the other party. Indeed, even if the victim of the breach is promis
12、ed a fair compensation, allowing such a rule globally might have a negative effect on the very purpose of the institution, which is to reduce uncertainty. As a consequence, the law should adopt a goal less ambitious than the maximization of social well being. That goal could be “to protect contracts
13、,” or, in other terms, to create a set of incentives that lead individuals to feel confident that their legitimate expectations will be fulfilled.As pointed out, those two attitudes may appear the same, differing just in degree. The first one assumes more knowledge on the part of lawyers and legisla
14、tors than the second. However, when it comes to practical decision-making, differences turn out to be important, because the more knowledgeable you think you are, the stronger will be the incentive to regulate the contract, and the lower will be the respect for tradition and customs on which daily e
15、xpectations are based.The two approaches outlined above are well known to economists. The first one is the so-called “mainstream” (Paretian) approach and underlines most of the existing economic analysis of law.3 The second one, stressing the problem of knowledge, is far less developed.4 We will call it the “safety-of-expectations approach,” or the Austrian approach to law and economics, because it can be found primarily in thework of the Austrian school of economic thought, and especially in Hayeks studies.“The rationale,” says Hayek, “of securing to e
