The Penalty Default Rule in Colombian Contract Law: The Case of the Contract of Carriage of Goods

In the late 1980s, Ian Ayres and Robert Gertner proposed a supplementary but controversial theory about how to fill gaps in incomplete contracts. Specifically, the authors coined the concept of the “penalty default rule”. This is a default rule that penalizes the silence of the contracting parties b...

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Detalles Bibliográficos
Autor Principal: Monroy C., Daniel A.
Formato: Online
Lenguaje:Español (Spanish)
Publicado: Departamento de Derecho Civil 2016
Acceso en línea:https://revistas.uexternado.edu.co/index.php/derpri/article/view/4552
Descripción
Sumario:In the late 1980s, Ian Ayres and Robert Gertner proposed a supplementary but controversial theory about how to fill gaps in incomplete contracts. Specifically, the authors coined the concept of the “penalty default rule”. This is a default rule that penalizes the silence of the contracting parties by filling a gap with a term that the majority of parties wouldn’t have wanted. Based on this theoretical background, the aim of this paper is to show that indeed, there are penalty defaults rules in Colombian contract law. To this end, the paper (I) proposes a methodology to identify hypothetical factual situations in which penalti defaults should be established; subsequently, (II) this methodology is tested in light of the central example of “penalty default rules” described by Ayres and Gertner; finally, (III) the methodology is once again tested, but using an example of Colombian contract law.