Règles de droit et inexécution du contrat. L'apport de la théorie économique des contrats au droit comparé

There are two remedies to the breach of a contract: the damages rule, that is prevailing in the Common Law system, and the specific performance rule, that is dominant in the Civil Law system. Economic justifications have often been given for the first rule, but the second. Using the incomplete contract theory framework, we analyze the conditions of efficiency for the specific performance rule. We show that in case of unilateral investment the specific performance remedy is as efficient as the damages remed. In case of bilateral investment the specific performance rule dominates the damages rule if all the bargaining power is given to one party. Furthermore, our analysis points out how economics enrich comparative legal analysis. Classification JEL: K12, C78