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Le contrôle objectif de l'équilibre contractuel. Entre droit commun des contrats et droit des pratiques restrictives de concurrence

Abstract : Control of contractual balance is one of the markers of contemporary contract law. Such control is grounded in several basic concepts: some authors refer to morality, while others invoke contractual justice or its economic relevance. Applied to imbalance between professionals, the tools implemented to ensure this control reveal the existence of objective control of the contracts’ expected balance. Although the subjective balance sought by the parties is not set aside, it is overshadowed by the determination of a kind of objective balance motivated by a will both to protect the weaker party and to promote a certain vision of the economy, and commercial exchanges. In this respect, restrictive practices law is an integrative discipline in which it is possible to combine protection of the weaker party with protection of the market. The influence of this discipline on common contract law and, conversely, the “civilization” of competition law under the influence of common law help better understand the mechanism of such objective control of contractual balance. This research aims to describe the objectification of identification criteria for contractual imbalance and the ways of remedying it. To this end, common contract law and law governing restrictive competition practices will be compared to shed light on such control in both these areas. More specifically, this thesis proposes to thwart phenomena of superimposition of and competition between existing systems for the objective control of contractual balance in both these disciplines through precise identification of their fields of application and their respective purposes. It also aspires to describe the functions of such objective control for both the parties and the market by emphasizing the need to examine these contracts by taking into consideration together both their micro and macroeconomic dimensions.
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Submitted on : Thursday, January 2, 2020 - 1:53:46 AM
Last modification on : Wednesday, October 14, 2020 - 4:23:41 AM


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  • HAL Id : tel-02426266, version 1



Faustine Jacomino. Le contrôle objectif de l'équilibre contractuel. Entre droit commun des contrats et droit des pratiques restrictives de concurrence. Droit. Université Côte d'Azur, 2018. Français. ⟨NNT : 2018AZUR0017⟩. ⟨tel-02426266⟩



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