The Fairness of Contractual Exchange in a Private Law Society: A Case Study of Early Modern Credit Markets.

Dermineur, E. and Svetiev Yane, 2015. In European Review of Contract Law. Volume 11, Issue 3, Pages 229–251, ISSN (Online) 1614-9939, ISSN (Print) 1614-9920, DOI: 10.1515/ercl-2015-0015, October 2015

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Quite apart from the question of the justifiability – based on prior  normative commitments – of legal rules controlling the substance of contractual exchange, such as a fair price rule, a common complaint against such rules is based on the difficulties of implementing and enforcing them. Rather than proceeding from first principles, it is also possible to examine the consequences of ex ante and ex post rules on the fairness of contractual exchange in contexts in which they have been imposed before testing such consequences against any normative commitments. This approach allows both to examine whether practical limitations on enforcing rules over the fairness of exchange are truly binding and, even if they are, whether such rules can have other either beneficial or negative effects on parties and contract law more broadly. We discuss a case study of credit markets in a rural community in early modern France marked by the relative absence of the State as a regulatory agent. Our analysis suggests, even very provisionally, possible functions of a weak mandatory rule even when over inclusive and difficult to enforce.