Le controle des clauses de fixation unilaterale du prix dans les contrats de vente commerciaux : étude comparée

The following study seeks to propose a new approach to the resolution of those legal problems that arise where discretionary clauses are contained within contracts. To this end, a specific legal scenario will be employed, namely where provisions which unilateraly state the price are inserted within commercial contracts of sale.The paper begins with a consideration of how these clauses have been treated by the French civil law system and then proceeds to compare this approach with that adopted by the common law systems of England and the United States. The initial question is that of the validity of the provisions themselves, and of the contracts that contain them. After resolving this first issue, the paper then considers whether a regime might be introduced which would seek to control the impact of the clauses through the introduction of legal responsibility for the party in whose favour the provision is created. Finally, the study addresses the precise nature of this potential responsibility, which is likely to be of a mixed character, combining both objective and subjective elements