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The Economic Analysis of Civil Law

2nd edition

9780857935144 Edward Elgar Publishing
Hans-Bernd Schäfer, Affiliate Professor of Law and Economics, Bucerius Law School and Claus Ott, Emeritus Professor of Civil Law, University of Hamburg, Germany
Publication Date: March 2022 ISBN: 978 0 85793 514 4 Extent: 648 pp
This comprehensive textbook provides a thorough guide to the economic analysis of law, with a particular focus on civil law systems. It encapsulates a structured analysis and nuanced evaluation of norms and legal policies, using the tools of economic theory.

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Critical Acclaim
Contents
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This comprehensive textbook provides a thorough guide to the economic analysis of law, with a particular focus on civil law systems. It encapsulates a structured analysis and nuanced evaluation of norms and legal policies, using the tools of economic theory.

Key Features:

• Examples and cases that illustrate central concepts of the economic analysis of law in relation to civil law doctrines
• Examination of the core areas of civil law: tort law, contract law, property law, intellectual property law as well as basic problems of insolvency law and corporate law
• In-depth analysis of the legal rules of statutory law and judge-made law, demonstrating the extent to which these rules are either based on economic criteria or run parallel to them – and the extent to which such criteria facilitate the application and further development of law

This substantially revised second edition presents the latest insights into legal economic research, including important empirical and behavioural deliberations. It will be a valuable guide for advanced undergraduate and postgraduate students of law and economics.
Critical Acclaim
‘This work’s relevance extends significantly beyond Germany to jurisdictions in Asia as well as many Anglo-American-law countries. The book offers a systematic coverage of the civil law system, utilizing the law and economics scholarship the authors have pioneered for half a century. It provides accessible discussions on the core pillars of economics that underpin the analyses of legal doctrines. These comprehensive chapters will be a masterpiece introduction for novices and experts alike.’
– Iljoong Kim, SungKyunKwan University, South Korea

‘Hans-Bernd Schäfer and Claus Ott provide a definitive economic analysis of private law in European civil-law systems. With rigorous style and insightful discussions, this outstanding book is a valuable companion for students of both law and economics, explaining in a lucid and comprehensive manner the economic impact of legal norms. Combining the more traditional aspects of efficiency and welfare with behavioural and psychological methods, this is a must-read for all scholars willing to understand the economic foundations of private law.’
– Emanuela Carbonara, University of Bologna, Italy

‘Professors Hans-Bernd Schäfer and Claus Ott are both scientific pillars and co-founders of the economic analysis of law. This publication is a comprehensive, path-breaking and much-needed tool for academic use, for legislative drafting and for legal policy-making aimed at human development while addressing the equity and efficiency foundations of all main legal traditions worldwide. Clearly a masterpiece!’
– Edgardo Buscaglia, Columbia University, US and National University of Buenos Aires, Argentina
Contents
Contents: Introduction to The Economic Analysis of Civil Law PART I FUNDAMENTALS 1. Alternative decisions, consequences, and evaluations 2. Normative foundations – What is social welfare? Problems of social choice 3. Economics, property rights and economic analysis of law 4. Homo economicus, behavioural economics, and paternalism PART II ECONOMIC ANALYSIS OF TORT LAW 5. Objectives and regulatory problems of tort law, the magic triangle of tort law 6. Fault liability and strict liability 7. Reciprocal and bilateral damages 8. Attribution of damage, causality 9. The scope of protection by tort law, liberal rights, pure economic loss, and non-pecuniary damage 10. Special problems of tort law: product liability, environmental liability, compensation for pain and suffering, vicarious liability, limits of civil liability PART III ECONOMIC ANALYSIS OF CONTRACT LAW 11. On the economic analysis of contractual freedom and contract law 12. The fully specified contract and its reconstruction by default rules 13. Complementary contract interpretation, base of the contract, reconstruction of the fully specified contract, and fair distribution of the total surplus from a contract 14. Economic analysis of breach of contract, impossibility and delay 15. Liability for defects in sales contracts and contracts for work 16. Ignorance, trust, opportunism and efficiency 17. Legal protection of legitimate expectations in the law of exchange of goods and services PART IV PROPERTY RIGHTS (ABSOLUTE RIGHTS) 18. Concept, function and design of property rights 19. The transfer of rights by acquisition in good faith 20. Involuntary transaction of property through taking and regulatory taking 21. Insolvency and conflicting security interests of creditors 22. Incompatible use of land and efficient use of an area 23. Intellectual property rights, the generation of innovations PART V CORPORATE LAW 24. From contract to hierarchy 25. Basic structures and problems of company law Index
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