The master thesis is concerned with managing unpredictable risks in contractual obligations. Here the need to adhere to the basic principle pacta sunt servanda is most often questioned. Historically, two concepts have emerged: force majeure and hardship. The first directed towards overcoming practical issues, whereas the second mainly based on considerations of justice. Continental legal doctrines maintain this separate approach of stricter but interpretationally wider criteria for frustration of purpose, whereas the common law approach does usually not differentiate. Such differences are reflected in international legal sources. Even the theoretical approaches differ significantly. Some prioritise the search for objectivized efficiency and most efficient risk bearer, others preserving the contractual relation, again others see judicial intervention as a means of correcting the initial defects in the interest of fairness or ex post economic efficiency. Despite this, a critical approach is perhaps favourable, discarding the use hardship to achieve ex ante Pareto efficiency. This seems particularly justified based on risk probability assessment in negotiations and decision theory. That is why the management of unpredictable risks is perhaps best left to the evolutionary forces of the free market. If so, the contractual parties have the initiative to invest in better decision making and risk assessment. At the same time, they have to be attentive to the formation of the contractual relationship both in formulating specific risk allocation provisions, and other provisions generally. Thus, based on the concept of a repetitive prisoner’s dilemma, they can enhance the likelihood of subsequent cooperation.
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