Revista Direito GV
versión On-line ISSN 2317-6172
ZANITELLI, Leandro Martins. Contractual reciprocity: an expressivist analysis. Rev. direito GV [online]. 2011, vol.7, n.1, pp.177-196. ISSN 2317-6172. http://dx.doi.org/10.1590/S1808-24322011000100009.
This paper tries to establish why the law of contracts should express the value of reciprocity. Although scholars have intensively discussed equality in exchange and the prohibition of unfair terms in contracts, few attention has been paid to the questions of knowing if and why it matters that the value of reciprocity be incorporated to the expressive content of contract law, that is, that the law, through the regulation of contractual activity, makes clear its adhesion to the value of reciprocity as equality in exchange or denying of exploitation of one of the parties by the other. The paper argues that the legal expression of the value of reciprocity - which may take place through either a general principle of contractual equality or more specific requirements, as such that of complying with the mean price (or “market price”) or that of not establishing certain clauses - is important for two kinds of reasons. first, the expression by the law of the value of reciprocity should be deemed important because the expressive content of the law is intrinsically important. in the case of reciprocity, it is argued that the law, as it manifests the wish that there be some correspondence between the sacrifice made and the advantage obtained by each party, ends up proclaiming, indirectly, The more basic values of equality and fraternity. Second, the legal expression of the value of reciprocity is important in face of its consequences. These consequences are not circumscribed to the ones coming from limits imposed to the freedom of the contractual parties or to the refusal of the courts to enforce unfair contracts, since the legal endorsement of the value of reciprocity may influence the reasons for acting of the contractual parties. As a result, instead of acting only in order to maximize her own gain, each party may include the protection of the interests of the other one among the reasons of her decisions. This paper was organized as follows. After the introduction, which contains some brief remarks on legal expressivism, part II offers a broad definition and some particular conceptions of contractual reciprocity. About each one of these conceptions, some difficulties or inconveniences, which are mostly tied to the attempt of imposing reciprocity through the restrictions of the legal efficacy of voluntarily made agreements, are referred to. Part III is dedicated to two forms of surveying the legal expression of the value of reciprocity, which correspond to the two forms of expressivism before mentioned; it seeks to establish, first, why the legal expression of the value of contractual reciprocity is intrinsically important and, second, to estimate which consequences that expression may have - with particular attention, in this last case, to the eventual influence that the symbolic addition of the value of reciprocity to the law of contracts may exercise over the reasons for acting of the contractual parties. In part IV, two ways by which the value of reciprocity can be expressed through law are compared: one, abstract, by which reciprocity is proclaimed without allusion to a more precise conception about what reciprocity is, and other, concrete, which reveals a certain conception of reciprocity or a particular requirement to observe reciprocity in some contracts. part V concludes the paper with some suggestions for future research.
Palabras clave : reciprocity; contracts; legal expressivism; contractual justice; consequentialism.