PP209
Analítico de Periódico
HELLWEGE, Phillip
Understanding usage in international contract law harmonization / Phillip Hellwege
The American Journal of Comparative Law, v.66 n.1 (Spring 2018), p.127-174
DIREITO COMERCIAL INTERNACIONAL, CONTRATO INTERNACIONAL
The importance of usage, especially trade usage, is uncontested. What has, however, been controversially discussed is how to explain its binding force. A contractual understanding explains it on a contractual basis: usage becomes part of the contract. In contrast, a normative understanding treats usage as a legal norm that is binding on the parties independent of being included in the parties’ agreement. The trend in international contract law harmonization is towards the normative understanding. The Article analyzes both understandings in instruments on international contract law harmonization and from practical and comparative perspectives, in order to provide a fuller comprehension of them. It then criticizes the normative understanding from theoretical, doctrinal, and historical perspectives. Finally, the Article fully explains the contractual understanding of usage and tests it from the perspective of an economic analysis of law. The conclusion of the Article is simple: the contractual understanding of usage is to be preferred.