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I am sure that having had to study more than a thousand pages of text, innumerable footnotes—often alluding to exotic sources and a similarly large number of cross references—you will not mind an epilogue that is short. I will also assume that you would probably want to have an answer, tentative though it may be, to the question of what lies ahead for the law of commercial contracts, including its continuing and hopefully accelerated, contribution to economic development.
Because law—whether positive or living—is invariably contextual (as this entire book illustrates) and if one takes into account the proven failure of centrally planned economies, what lies ahead for the law of commercial contracts will depend on the fate of two versions of market economies. In the first, commercial contracts are used extensively, but they reflect mostly the selfish impulses of merchants and of their governmental, usually corrupt, partners and as counselled by submissive-client-ueber-alles-lawyers. Clearly these are free markets in name only: Monopolies and oligopolies, corruption, invertebration and economic stagnation will eventually prevail as they did shortly after China’s eighteenth century imperial commerce reached its developmental peak and as they continue to prevail in many of the developing nations discussed in this book.
In the second market economy, where commercial contracts are formed by the right mix of altruism and selfishness and where disputes are adjudicated on the basis of what is reasonable and fair (often as illustrated by the archetypal behavior of knowledgeable and respected merchants), standard and best practices will consolidate their place as the main source of the living, as well as of the positive commercial law. Standard practices will continue to be applied to regular participants in their trade or sector and the number of these practices will continue to grow. What is uncertain is whether best practices will keep pace. Recall that best practices can apply either to transactions between regular participants and third parties or to transactions only between regular participants, but with a marked effect on the interests of third parties, especially of those not capable of bargaining on equal terms with regular participants.
In theory, the number of best practices are also likely to increase because the contemporary marketplace is one in which the largest number of participants are contractual strangers. This book shows that to protect the participation of these third parties or strangers in the marketplace is to protect the vitality of the marketplace and to improve the wellbeing of regular participants and third parties.
Yet, for the third party participation to increase significantly, the ethics of the marketplace will need to undergo a change that reflects the importance of cooperation, not only among regular participants, but also with third parties. They should be protected by the same duties of honesty, reasonableness and fairness that characterize successful standard practices. This will require a change in the role of commercial lawyers so that while they continue to be devoted and capable advocates for their clients, a new version of professional good faith also requires them to be guardians of the honesty, reasonableness and fairness of the transaction they counsel.
Such an attitude will require a redirection in the teaching of commercial contract law and in its everyday application by lawyers and adjudicators. Once familiar with the nuts and bolts of the transactions, they will need to identify sectoral and archetypal contractual behavior and to discern both, the existing mix of selfish and altruistic practices and the mix is most likely to satisfy the reasonable expectations of the archetypal contracting parties. They will also need to ascertain the likely effect of standard and best practices upon third parties bearing in mind that the greater the number of market participants acting in different commercial capacities, the greater will be the likelihood of economic development for all.
And once students learn to identify standard and particularly best practices, they will also have to learn how to formulate them as the legal principles, maxims, concepts and rules that will shape the future law of commercial contracts. Finally, it is worth recalling that the practices that proved most successful in the Anglo-American facilitation of commercial and consumer credit and economic development were those that induced the most trust among participants. And that trust was induced most by practices whose transactional sequence was initiated by an act of giving.