Justificări economice ale incompletitudinii contractuale: (in)completitudinea contractelor digitale
Economic justifications for contractual incompleteness: (in)completeness of digital contracts

Summary/Abstract: Information asymmetries, as well as limited economic resources, can fuel the process of forming incomplete contracts, whose essential elements are insufficiently regulated by the contractual provisions, so as to outline a specific or at least determinable object of the contract; a first category of transactions concerned are those contracted without the contractual partners fully exhausting the range of clauses that could be relevant in terms of the performance of the assumed obligations, the arrangement of contractual liability, the selection of the competent jurisdiction for the resolution of potential disputes. In certain cases, the legislator may impose a certain standard of contractual “completeness” that would refer to provisions whose omission from the contractual field would accentuate the gap of forces between the contractual partners, in situations marked a priori by the vulnerability or precariousness of the contractual position of one of the parties. The economically motivated contractual incompleteness is only a form of “analepsis” of the “friable” contractual relationship in the absence of pertinently selected clauses, and can be doubled by the contractual incompleteness dictated by insufficient time reserves or even by the anticipatory contractual incompleteness. The management of contractual incompleteness in platform to business relationships raises, in turn, issues related to the obligation to complete the contractual content with certain specifications selected according to the provisions of EU Regulation 2019/1150 on transparency and fairness of digital services.

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