L'allocation des risques dans les contrats

Risk allocation in contracts is an important issue for both economics and law. It questions the theorerical, methodological, empirical foundations of economic and legal analysis. It also offers a valuable ground for comparative legal-economic inquiry. The article aims at providing some insights into that general perpective, and proceeds with an articulation of theoretical and empirical analysis. The paper first offers a critical analysis of some key economic basis hypothesis on law, contract law and legal institutions, notably the courts. It concentrates on various componants of the New Institutional Economics stream that are something to do with the notion of contractual incompletedness. The emphasis is put on two central issues : the contract-institutions relations, and the scope of incompleteness as a guide for empirical research into the economic dimensions of contract law. The second part of the article compares and evaluates the significance of the economic concept of incompletedness and theFrench legal notion of imprévision, which relates to a notion that the administrative courts have set-up to decide cases in which the occurrence of unforeseen events affects the contractual equilibria built ex ante. The analysis then moves toward the research of a legal and empirical translation of uncertainty of the future. The article argues that positive legal provisions in contract law enable co-contractors to set-up a framework in which the consequences unforeseen events can be adressed. Legal provisions such as those which relate to conditional duties, aleatory contracts, force majeure, fortious events, price revision, hardship, are examples of tools that allow a significant amount of previsibility in contractual relations, particularilly long-term contracts. We then offer an empirical analysis of a specific legal notion : the imprévision. The analysis is based on legal data, namely the French Conseil d'Etat decisions that deal with a request for compensation by the State of the economic consequences of the occurrence of unforeseen events for the suppliers. A descriptive statistical analysis is associated to a study of the doctrine that the State officials adress to contracting officers ; a comparison of price determination provisions under American procurement and French law of "marchés publics" is then made.