Creditor's Fault: In Search of a Comparative Frame

Abstract

In this article, I compare the role of the creditor’s (promisee’s) conduct in contractual relationships in US and European legal systems. Different approaches to comparative negligence 1 and mitigation are first considered, and then a more general analysis of doctrines dealing with the creditor’s position in the contractual relationship and the role of cooperation is carried out. In this area, legal systems display significant divergences – partly rooted in their historical antecedents, and partly related to different concepts of contracts and contractual relationships. Continental European systems (with significant differences between Germany and France) recognise a strong role for comparative negligence and the duty to cooperate, while common law jurisdictions (with important differences between England and the US) limit the scope of comparative negligence and the duty to cooperate whilst attributing a wider role to the duty to mitigate. 2 The divergence between the Continental European and common law regimes can largely be explained by their different forms of regulatory capitalism, as market structures and contractual interdependencies especially in the context of business transactions may influence the emergence and operation of a system’s comparative negligence rule. 3 In particular the different role of the judiciary in relation to private autonomy and to contractual freedom can