Contract Collisions: An Evolutionary Perspective on Contractual Networks

Article excerpt

I

INTRODUCTION

The anthropocentric bias inherent in our culture also informs our understanding of law. Because of this, we often have difficulty imagining that new schemata for dealing with unresolved legal conundrums may emerge in practice without conscious human effort. In the minds of jurists, a script (in the classic Goffman sense (1)) has become ingrained, according to which a legal concept is first invented by a legal scholar, then promoted by a political figure or tested in court by a (usually somewhat audacious) lawyer, and then enacted by lawmakers or applied by judges, at which point it becomes a fixture in legal practice--until such time as a new inventive spirit comes up with a better concept and the process repeats itself from the beginning. (2) In short, law is usually considered to be the product of human intention and planning. (3)

But who was it that devised the notion of the contract, or of legal personality, or of property? The traditional understanding of legal concepts fails to account for what could be called the "idiopathic" manner in which law evolves, and underestimates the creative force behind it. Legal evolution is a communicative process that takes place at a level of emergence detached from that of individual experience. (4)

This blindness to the existence of gradual evolutionary processes in the development of law is certainly more marked in Continental Europe than it is in common law countries. Civil law jurisprudence is traditionally much less receptive to the notion of legal innovation through changing judicial precedent--the conventional practice of Anglo-American common law. This is unfortunate, because the solutions found in court judgments, though designed only for the settlement of specific conflicts in individual cases, often conceal within them, at a deeper, more abstract level, the seeds of legal paradigms that--if for no other reason than the means by which they came into being--offer considerable promise of being particularly suitable to existing social conditions.

In this article, I would like to demonstrate the plausibility of this thesis with the example of a judgment by the Swiss Federal Supreme Court, 115 BGE II 452. (5) Although this judgment did not attract a great deal of attention at the time it was published, (6) it nevertheless represents a particularly telling example of what may be termed "communicative" case law. In this judgment, social undercurrents come to expression (though admittedly still clouded in some obscurity) that are acting to compel the law of contracts to increasingly take into account the heterarchic or network logic of contractual relationships (7) (regardless of whether they are referred to as "combined contracts" or "legal consortiums," or as "contractual webs," "contractual networks," or groupes de contrats). (8) If I am correct in my reading of this judgment, it may even be said that 115 BGE II 452 contains within it the fragments of a model for a law of contractual nexus.

II

VARIATION IN LEGAL EVOLUTION: DISTORTING JUDICIAL PRECEDENTS

The matter to be decided in 115 BGE II 452 related to the contractual affiliation (9) that had been created bilaterally between the operating company of the clinic, clinic Y, and the physician, Dr. X. On May 6, 1983, the parties finalized a so-called collaboration agreement that defined the terms for the use of the clinic's facilities by Dr. X for his private patients. The agreement was for an indefinite length of time, with a six-month period of notice for termination (Article 5 of the agreement). Less than one year later, on April 1, 1984, the same parties signed a lease, under which the premises within the clinic building were let to Dr. X to be used for the operation of his own (private) medical practice. This agreement was also not limited in time. The termination clause referred only to the relevant terms of the collaboration agreement, stipulating that the "period of notice fixed in Article 5 of the collaboration agreement dated May 6, 1983" was to apply. …