著者

姫野 学郎 ヒメノ ガクロウ Gakuro Himeno

雑誌

国際研究論叢 : 大阪国際大学紀要 = OIU journal of international studies

巻号頁・発行日

vol.16, no.2, pp.195, 2003-03-31

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Two theories have appeared in the last decade in Japanese contract scholarship that are labeled as postmodernist: one is Professor Takashi Uchida’s “relational contract theory” that has been profoundly influenced by Professor Ian Macneil; the other is Professor Kenji Yamamoto’s theory that has been inspired by Professor Norbert Horn’s “Duty to Re-negotiate (Neuverhandlungspflicht).” In this short article I seek to analyze the two theories because both are focused on the performance stage of contracts – contract renegotiation. The most significant difference between the two theories is that Yamamoto highlights the tension inherent to the “Duty to Re-negotiate,”an obligation to freely agree (eine Pflicht, sich freiwillig zu einigen), while Uchida deliberately alleviates it by regarding the duty as an “immanent norm.” The reference group in the Yamamoto theory is indeed all the potential discussants (following Jurgen Habermas) whilst that in Uchida’s theory is the interpretative community of the business (following especially Hans-Gearg Gadamer). The two are related, it will be discussed, to the traditional argument about the appropriate relationship between “ratio” and “voluntas,” furthermore between Vertragsgerechtigkeit and Vertragsfreiheit.