Contract interpretation and relational contract theory : a comparison between common law and civil law approaches

The paper focuses on the main legacy of the relational contract theory in the context of contract interpretation and its influence on contemporary scholarship. First developed in the United States, the relational contract theory has had a significant resonance within common law countries, emphasisng the importance given to 'contextualism' and the 'implicit dimensions' of contract, whereas no equivalent doctrinal elaboration can be said to exist within civil law countries. The paper suggests however, that interestingly, at least one civil law country - Italy and, to a certain extent, the recent European soft law documents (PECL, DCFR, CESL) recognise rules on contract interpretation which indirectly reflect some of the main claims of the relational contract theory. These rules, in turn, are necessarily linked to the underlying values that each legal system emphasises, and the view of the contractual relationship as mainly 'adversarial' or 'cooperative' in character. The study of the relational contract theory may therefore serve as a testing ground for any legal system, posing the choice between a 'drastic' reform of the classical common law precepts of contract law and its underlying ethic, or the welcoming of a contextual approach which does not completely discard the model currently in place.