Alba Fondrieschi, ‘“Discrete” and “Relational” Approaches in Implied Contractual Relationships: A Look at English, Japanese and Italian Law’

ABSTRACT
In the commercial field, the practice of doing business through a series of fixed-term contracts that are renewed from time to time between the same parties, but not expressed in any framework contract, is a fairly frequent phenomenon – usually known as ‘implied contractual relationships’ or ‘implicit contracts’ – which, however, does not seem to be always recognised in the courtrooms of many legal systems.

It is usually believed that a ‘discrete’ approach to the contract – to recall Macneil’s famous distinction between discrete and relational contracts – can more easily result in the non-recognition of the legal value of implicit contractual relationships, while a ‘relational’ perspective would allow to look more closely at the economic transaction as a whole, thus leading to the acknowledgment of implicit contracts.

In this paper I will try to examine the same issue from the discrete perspective (with reference to the English system), the relational perspective (with reference to the Japanese legal system) and a third perspective taken by the Italian system, in order to show the actual differences between the relational and discrete approaches to the contract and what remedies are most effective.

Alba F Fondrieschi, ‘Discrete’ and ‘Relational’ Approaches in Implied Contractual Relationships: A Look at English, Japanese and Italian Law, European Review of Contract Law, volume 15, issue 4. Published Online: 2019-11-13. DOI: https://doi.org/10.1515/ercl-2019-0023.

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