The Majoritarian Concept of Default Rules : Towards a Shift in Paradigms?

The majoritarian theory is definitely the most prominent and foundational conceptual frameworks that attempts to both explain and legitimize non-mandatory (default) rules in contract law. It builds on the assumption that default rules should reduce the level of transaction costs, by providing parties with the solutions that fill in gaps in concluded agreements, absent other parties' agreement. For this reason, it is believed that default rules should reflect the average or most widespread preferences of contractors who conclude a particular type of an agreement. The text argues that the classic majoritarian approach is in many regards deficient. It builds, in particular, on false epistemic premises by assuming that setting of default rules in the classic centralized way (by a lawmaker and by courts) allows identification of actual preferences of contractors and hence to supply contract law with efficient defaults. From this vantage point, the text attempts to map the new perspectives of development of the majoritarian attitude, by taking a look at two processes that underlie the present phenomenon of private law arising beyond a state: development of the modern type of transnational law and emergence of electronic commerce beyond the institutional frames created by a state. In this way, the paper sets – and preliminarily discusses – the concept of “fractioned” majoritarian rules, which seems to provide a relevant explanatory framework for the out-of-the-state creation of default rules