Efektivní porušení práva
Efficient Breach of Law

Summary/Abstract: A number of parties knowingly breach contract in order to gain an advantage for themselves at the expense of others or to the detriment of public interest. Sanctions are considered to be an acceptable ‘price’ for such a breach. The concept of ‘efficient breach of contract’ is presented as the counterpart of the traditional moral and legal principle of ‘pacta sunt servanda’. It emphasises greater flexibility and freedom of the contracting parties, who value the private benefit of a breach of contract more than the good feeling of fidelity to a contractual obligation. Even more acute is the extension of this approach to the performance of statutory obligations. The article first discusses the ideological and value underpinnings of the efficient breach theory in general terms. It concludes that an effective breach of contract is at the discretion of each party and is associated with potential liability consequences. However, the admissibility of so-called efficient breach cannot be mechanically transferred to areas where the duty to act lawfully arises from the provisions of legislation. The relativisation of the statutory standard of due managerial care of a member of a corporate body, justified by the ‘effeciency’ of the breach for the corporation, is criticised with the help of practical examples. The business judgment rule does not give legitimacy to a violation of the law in the corporation’s allegedly justifiable interest. The position that loyalty to the corporation cannot stand above loyalty to the law is justified.

• Details
• Contents