Copyright (c) 1985 University of Wisconsin Law School
Wisconsin Law Review
May, 1985 / June, 1985
1985 Wis. L. Rev. 581
LENGTH: 15538 words
SYMPOSIUM: LAW, PRIVATE GOVERNANCE AND CONTINUING RELATIONSHIPS:
RELATIONAL CONTRACT: COMMENT: RELATIONAL CONTRACT THEORY IN A COMPARATIVE
PERSPECTIVE: TENSIONS BETWEEN CONTRACT AND ANTITRUST LAW PRINCIPLES IN THE
ASSESSMENT OF CONTRACT RELATIONS BETWEEN AUTOMOBILE MANUFACTURERS AND
THEIR DEALERS IN GERMANY.
NAME: CHRISTIAN JOERGES *
BIO:
* Professor of Law, Bremen University; Co-Director, Center for European Legal Policy, Bremen; Dr. jur., Frankfurt
University 1969; Assessor, 1971; Dozent, Frankfurt University 1973. My participation at Madison was made
possible through both the support of the symposium organizers and a financial contribution from the Deutsche
Forschungsgemeinschaft. I am also indebted to Stewart Macaulay and Bill Whitford for their patient advice and to
many participants of the symposium for their helpful suggestions.
SUMMARY:
... There have been efforts in Germany to adapt general contract law doctrines to the
special conditions of long-term contractual relations and, moreover, there exist intensive
discussions on the means and the fairness of contract adjustment terms in various areas. ...
The Federal High Court's refrain from a more precise definition of the adopted standards -thus imposing a duty on the parties to renegotiate their relation -- may be interpreted by
Macneil as the emergence of truly relational contract law. ... Relational contract law may
turn out to be flexible enough to adapt even to the constant changes that dynamic
competition policy concepts would require. ... In this respect, relational contract law is
nothing other than a "functional" response to the deficiencies of an outmoded model. The
ideological and political neutrality of the concept is perfectly consistent with the method
used in Macneil's analysis of new values and norms accompanying the emergence of
relational contract law. ... The question whether relational contract law theory claims to
guide the judicial decision-making process seems thus to be answered in the negative. ... At
this level, justifying the content of rules or principles is abandoned and replaced by the
justification of procedures guiding the discourse of synthetic moral judgments. ... My
interest in the concept of relational contract law likely has thus, for Macneil, a surprising
background. ...
HIGHLIGHT: Traditionally, contract disputes between German automobile manufacturers
and their dealers have been limited, with the terms of the contracts drawn overwhelmingly
in favor of the manufacturers; dealers protected themselves through associational actions.
Passage of the Standard Terms Act of 1976, coupled with the announcement of recent
Federal High Court decisions interpreting that Act have, however, indicated that the courts
are becoming -- at least in a contracts context -- more willing to balance the manufacturers'
need for flexible adjustment mechanisms against the dealers' desire for a less one-sided
contractual arrangement.
On the other hand, recent German court decisions involving automobile manufacturerdealer contracts made within the context of German antitrust law concerning vertical
restraints of trade have permitted manufacturers the right to insist that dealers accept
exclusive dealing and purchasing arrangements. Thus, the antitrust cases have reinforced
the one-sidedness of these contracts.
In this Comment, Professor Joerges explains that this inconsistency could partially be
resolved through refinement either of economic analysis of law approaches or German
contract law scholarship, but that neither method ever will be satisfactory. Professor
Joerges suggests, instead, that Ian Macneil's relational contract theory is a more
satisfactory method for resolving the inconsistency of these decisions because it better
integrates an understanding of the relationship of competitive processes and contractual
behavior.
Nonetheless, Professor Joerges suggests that Macneil's theory needs refinement in two
respects. First, it is based upon an incomplete critique of classical contract, which equates
rights with freedom and assumes therefore that institutionalized rights are a satisfactory
guarantee of a legitimate social order. Second, it inadequately explains the development of
neo-classical law from classical law because it is a functional model whose ideological and
political neutrality neglects the necessity of making normative judgments in assessing
conflicts among colliding legal claims generated from social conflict.
TEXT:
[*582] Ian Macneil's work on relational contracts has hardly been perceived as yet in
Germany; n1 even less noted are efforts to synthesize his theory with the economic analysis
of law; n2 and recognition of critical reactions to Macneil is non-existent. This does not, of
course, mean that the non-legal and legal phenomena identified by Macneil have not been
observed. There have been efforts in Germany to adapt general contract law doctrines to
the special conditions of long-term contractual relations n3 and, moreover, there exist
intensive discussions on the means and the fairness of contract adjustment terms in various
areas. n4 For this reason, the law of relational contracts is a fascinating subject for
comparative research and analysis. Although it would certainly be worth doing this research
within the broad framework of Macneil's approach, such an ambitious attempt would
demand too much from this Comment. Thus, I have chosen to resort to an American virtue:
I will present a concrete example and explain my general comments about Macneil's
approach by reference to this concrete topic.
My example deals with the relations in Germany between automobile manufacturers and
their authorized dealers. It thus concerns a relatively small sector of the broad spectrum of
relational contracts as understood by Macneil. The first reason for choosing this subject is
simply the fact that it is one to which I have recently devoted much time. n5 More
importantly, it manifests exemplary qualities: The relations between automobile
manufacturers and their dealers have never conformed [*583] to the patterns of
"classical" contract law; and they seem to overstrain the regulatory capacities of "neoclassical" contract law as well. Furthermore, these relations are affected by "external"
policies, n6 such as antitrust objections to their effects on the competitive process. Thus, the
law regulating automobile manufacturer and dealer relations has suffered not only from the
difficulty in applying "classical" or "neoclassical" contract-law principles, but also from
conflict with the presently more permissive antitrust law. This Comment examines American
approaches for help in dealing with questions not satisfactorily settled by German courts
and legal writers.
I. THE ANTITRUST AND CONTRACT LAW ASSESSMENT OF THE MANUFACTURER-DEALER
RELATION IN CURRENT GERMAN CASE LAW
The present state of the relations between automobile manufacturers and their dealers in
Germany is the result of a long and complicated development. Among the actors involved
are, apart from both parties to the automobile dealer contracts, other industrial branches
(above all the supply industry, which has specialized in the manufacturer of automobile
parts and spare parts), countless associations connected with the automobile industry right
down to the automobile clubs and, last but not least, the government. It will, however, be
sufficient for this analysis to stress a few features of the present situation.
For the automobile manufacturers, contracts with dealers are an integral part of a
marketing strategy intended to create a specific manufacturer image and to further the
consumer's loyality to that manufacturer. n7 The contracts determine in detail how the
dealers conduct their business; they prescribe the equipment of the business premises and
provide for supervision of advertising methods; they require specialized and technical
training of staff and regulate the standards of after-sales services including the use of spare
parts; they safeguard the manufacturer against the transfer of a dealer's firm to an
unsuitable successor; and they do much more besides. n8
[*584] For the dealers, contracts with the manufacturers constitute the basis of a
precarious form of existence. In formal legal terms, the dealers were and are independent
firms (with the exception of Mercedes Benz's vertically integrated "Hauptniederlassungen").
In practice, however, most contracts contain provisions tying dealers to a specific
manufacturer, thus permitting dealers to sell cars made only by that manufacturer.
Nonetheless, the dealers are not only aware of the restrictions on their "independence" but
in principle support the establishment of such manufacturer-specific sales-and-service
networks. n9
Conflicts between manufacturers and dealers have only rarely resulted from such
provisions, which nonetheless have been attacked by government antitrust authorities
because of their impact on intrabrand or interbrand competition. Instead, conflicts have
centered around dealers' interests to secure their investments and expectations against
discretionary decisions made unilaterally by the manufacturer. In other words, the dealers
are concerned first and foremost with a kind of "social protection" and only then with the
protection of their freedom as "autonomous traders." These key words lead us into the
topics of current legal controversies.
A. Dealer Franchise Contracts and the Standard Terms Act of 1976
The contracts between automobile manufacturers and their dealers manifest all the features
that, according to Macneil, generally mark relational contracts. n10 Thus, the contracts are
valid for an indefinite duration, the general obligations of the parties are described in
general clauses, and specific contractual obligations can be modified or amended in many
ways so as to make possible flexible adaptions to changing competitive conditions. Any
declaration of "common commitment," which can usually be found in the preambles to the
agreements, does not, however, alter the fact that the manufacturer defines that
commitment. This dominance is also expressed in the machinery of contractual adjustment.
n11
Accordingly the manufacturer-dealer relationship can be characterized as a "relation of
adhesion." n12 This characterization holds particularly true for the terms governing the
adjustment [*585] of the relation to new conditions. Such terms usually provide the
manufacturer with unilateral rights to amend, to concretize or to change existing
obligations.
It would be erroneous, however, to infer from the terms of the contract that the
manufacturer is in complete control of the relation and to treat the distribution of power as
unchangeably fixed. In fact, the dealers do have means to avoid or to contravene
manufacturers' control. n13 For example, they can use manufacturers' economic difficulties to
accomplish changes in the terms of their contract to their own advantage. n14 The most
important means, however, by which the dealers have increased their bargaining power and
thus their influence is by collective action: the dealers have established manufacturerspecific dealer councils which represent their views vis-a-vis the manufacturer and they
have formed nation-wide organizations to represent their common interests.
1. LITIGATION PRIOR TO THE ENACTMENT OF THE STANDARD TERMS ACT OF 1976
The manufacturers' interest in exercising control over "their" distribution and servicing
networks and in reacting promptly to changing competitive conditions on the one hand and
the dealers' interest in preserving their investments and in ensuring "fair" retail margins on
the other are susceptible of creating a broad range of intense controversy. Nonetheless, for
a long time in Germany, the courts have considered very few issues concerning
manufacturer-dealer relations. n15 The bulk of contract law cases has involved one type of
controversy. Dealers have sought judicial redress when conflicts with the manufacturer have
led to some irreparable breakdown -- i.e., where the prerequisites existed for a termination
of the contract. n16
In adjudicating the conflicts arising out of the termination of automobile dealer contracts,
the courts have long resorted to a statutory provision of the German Commercial Code n17
dealing with the termination of commercial agents, developing an action for "fair"
compensation [*586] of the dealer in case of termination. This judicial action respects the
manufacturer's interest in being able to terminate the contract at will. At the same time, it
aims at compensating the dealer for his contributions to the economic achievements of the
franchised system. Even after many years of litigation, however, the prerequisites for the
action and, above all, the amount of compensation required still remain vague and the
outcome of lawsuits is hardly predictable. n18
2. THE STANDARD TERMS ACT OF 1976
Whether resort to the courts have destructive effects on a contractual relationship aimed at
long-term cooperation is a question which is important for relational contracts theory, but
one for which there is no general answer. One may suspect that judicial intervention in the
manufacturer-dealer relation was restricted to termination cases simply because the
economically dominant party did not need such aid or because the weaker party feared
some form of retaliatory action. This supposition would at any rate explain why litigation
between manufacturers and dealers has intensified after the enactment of the Standard
Terms Act of 1976 (Gesetz zur Regelung des Rechts der Allgemeinen
Geschaftsbedingungen). n19
To understand the impact of the Act on the manufacturer-dealer relationship, one must at
least refer to the enactment of AGBG in its context of the consumer movement of the
1970's. The AGBG aimed first to protect consumers ("non-merchants" in the terminology of
the Act) against "unfair" terms if such terms are used in "general conditions" of a contract
("standardized terms," Allgemeine Geschaftsbed-ingungen). To ensure this protection, the
Act requires that consumers be given reasonable opportunity to become aware of the
content of standardized terms, n20 and, irrespective of this requirement, that the content of
the general conditions meet given substantive standards for fairness. Section 11 contains
extensive lists of terms which are invalid [*587] per se. Section 10 supplements that
catalogue by a second list of clauses which need a closer evaluation, and section 9
completes these controls by a general clause. In order to ensure the practical impact of
these provisions, AGBG section 13 enables consumer associations to bring actions against
the further use of unfair terms.
Although automobile dealers do not seem to require this kind of protection, section 24 of
the Act explicitly provides that the standards set out in section 9 apply to "merchants" -- i.e.
to any business transaction in which standardized terms are used -- and the procedural
tools set out in AGBG section 13 are available to "associations for the promotion of
commercial interests." n21 It should come as no surprise that the automobile dealers and
their associations have tried to profit from the Act. According to the generally held view,
their contracts with the manufacturers are "standardized terms" in the meaning of AGBG
section 1. n22 Thus, a dealer may challenge the validity of any term of his contract by
resorting to AGBG section 9 and dealer organizations may assist their members in
improving their contractual position by an action under AGBG section 13. Both of these
provisions -- the applicability of AGBG section 9 to commercial transactions as well as the
availability of the procedural devices of AGBG section 13 -- have led to intensive litigation,
discussed in part below.
Of special importance here are two recent cases: one, an action brought by the Association
of German Opel Dealers n23 and the other an individual action brought by a Ford dealer
against the Ford-Werke AG. n24 The task facing the courts in these cases to review
standardized commercial contracts under AGBG section 9 is a formidable one. Section 9.1
states that terms are invalid when, "contrary to the requirement of good faith, [they]
unreasonably disadvantage" the other party. According to section 9.2, an "unreasonable
disadvantage" is to be presumed either where a term is "incompatible with the fundamental
idea [*588] of an optional rule of law from which it deviates" or when the term limits
"essential rights or duties that flow from the nature of the contract" so as to jeopardize the
accomplishment of the contract's purpose. Because the guidance offered by these provisions
is evidently limited, the courts must develop their own standards. The difficulties of that
task are apparent in both the Ford and Opel proceedings.
a. The Ford case
The tension between the need for adjustments and protection of the dealer were at issue in
the Ford case decided recently by the Federal High Court. n25 This case dealt with a special
term of the Ford main dealer agreement ("Ford agreement") concerning adjustment of the
contract territory assigned to the dealer. In this provision the Ford-Werke AG "reserved for
itself the right to appoint one or more additional dealers in the market responsibility area,"
if it "comes to the conclusion" that "its interests in the market responsibility area are not
being adequately protected for reasons of market coverage or sales achievements"; Ford's
only obligation was to notify the existing dealer of an intended new appointment three
months in advance.
The Federal High Court held that this provision violated the principle of "good faith" for
three reasons: n26 (i) The use of the contractual form in itself has substantial implications,
and changes of the contractual conditions originally agreed upon may in principle only be
effectuated bilaterally; exceptions to this principle must be justified by important reasons
which explicitly state the prerequisites for a unilateral change of contractual conditions and
adequately take the interests of the other party into account. (ii) The cited provisions of the
Ford agreement do not restrict Ford's right to modify the dealer's market responsibility area
by objective, valid reasons; furthermore, it fails to take account of the dealer's interest to
assess properly his risks at the commencement of the agreement and to amortize possible
investments. (iii) The restriction of the dealer's market responsibility area is economically
equivalent to a partial termination of the contract; the Ford agreement, however, failed to
recognize that a dealer has to be compensated for losses incurred because of the restriction
of his market responsibility area. n27
[*589] b. The Opel dealers case
The Association of German Opel Dealers, in its action brought against the Adam Opel AG,
attacked numerous provisions of the Opel dealer contract n28 (Opel-Handler-Vertrag "Opel
contract"). Although each of these points merits closer analysis, the delicate problem of
judicial supervision of franchised dealers' contracts can best be illustrated using the dealers'
attack on the general adjustment rule in their contracts.
The pertinent provision of the contract corresponds almost word for word to section 315 of
the German Civil Code of 1900 and reads: "Insofar as this contract expressly reserves the
right for Opel to stipulate or change the contents of the obligation to be rendered by Opel or
by the franchised dealer, Opel will exercise that right according to its fair discretion upon
examination and consideration of the objective economic interests of Opel and the Opel
franchised dealers. The same applies insofar as Opel reserves for itself the right to agree or
not to agree to changes requested by the franchised dealer."
According to the Frankfurt District Court (Landgericht), "traders such as the Opel franchised
dealers should not be placed in a weaker position and do not deserve less protection than
non-traders." n29 Therefore, the court concluded, the "principle of concreteness" of
obligations entered into in standardized terms could be invoked by the dealers, and that
was held to militate against the cited provision. The "principle of concerteness" (of
"transparency") has been developed mostly in the context of AGBG section 13 by consumer
associations. It is meant to induce the party setting standardized terms to specify these
conditions so that the other party becomes aware of its future obligations and that the
courts are in a position to examine their fairness. n30 The Frankfurt District Court concluded
that both of these objectives were jeopardized by Opel's reservation of unilateral right to
modify its contractual obligations.
The Frankfurt Appeals Court (Oberlandesgericht) affirmed, but rested its decision on a
somewhat different ground. The higher court accepted in principle flexible adjustment
provisions, but ruled that the manufacturer must respect "contractually granted assets of
the [*590] franchised dealer." In order to mediate between these competing objectives
the manufacturer should "as far as possible and reasonable" specify his discretionary rights.
Because the cited provision of the Opel contract did not even attempt to meet this standard
it was held to be invalid. n31
The Federal High Court not only partially reversed the holdings of the lower courts, n32 but at
the same time seemed to enunciate a drawback from the principles just advanced in the
Ford case. The Federal High Court held that the cited provision of section 1 C of the Opel
contract did not violate the fairness standards of AGBG section 9, distinguishing between
the reservation and the exercise of unilateral rights. The "principle of concreteness" was
held to control only the prerequisites and the extension of such rights but not their exercise.
Since section 1 C concerned the exercise of rights granted elsewhere in the Opel contract,
this provision was upheld.
One provision affected by section 1 C and attacked by the Association of Opel Dealers'
complaint concerned the appointment of new dealers. That provision stated simply that Opel
may announce such an appointment without the dealer's consent. Since the court had
confirmed the applicability of the "principle of concreteness" as far as the reservation of
unilateral rights was concerned and since it had, in its Ford decision, protected the plaintiff
against a unilateral cut-back of his market responsibility area, an annulment of this
provision was to be expected. But, the Federal High Court pointed to a number of other
provisions of the Opel contract all confirming Opel's right to restructure its distribution
network; the court concluded that the Opel contract did not grant the dealers any assets in
a defined market area; therefore, the cited provision was held not to change the dealer's
contractual position.
Thus, the Federal High Court seems to have announced the end of the short history of
dealer protection under the AGBG. But such a conclusion would be premature. In its further
assessment of the Opel dealers' complaint, the Federal High Court struck a different balance
in determining the parties' rights. For example, the court held that Opel may not reserve an
unlimited right to prohibit the transfer of business assets or to interfere with any change in
the management of the dealer's [*591] firm; the manufacturer may change its warranty
towards the final consumer but it must at least substantiate legitimate reasons for changing
its corresponding obligations towards the dealer; and the contract must provide for
adequate compensation to the dealer in case of termination of the franchise. In sum, the
outcomes of the Ford and Opel cases may be tentatively characterized as a tight-rope walk
between the recognition of the need for flexible adjustment mechanisms and the effort to
protect the weaker party by ensuring some form of reciprocity in the design of contractual
provisions in general and of adaption mechanisms in particular.
B. Automobile Dealer Contracts and Antitrust Law
German antitrust law (Gesetz gegen Wettbewerbsbeschrankungen ["GWB"]) concerning
vertical restraints on competition is anything but easily comprehensible. Under GWB section
15 resale price maintenance is illegal per se; a recommendation of prices for brand-name
goods is, however, permissible under GWB section 38a. According to GWB section 18, nonprice vertical restraints are subject to discretionary control by the Federal Cartel Agency.
GWB section 26.2 protects the franchised dealer against discriminatory practices of the
manufacturer and, moreover, protects competitors against unfair (non-contractual)
restraints on competition. n33 The authority of the Federal Cartel Agency under GWB section
18 to supervise and to regulate vertical restraints has so far remained practically
insignificant as far as the automobile industry's distribution systems are concerned. n34
Instead, both the Federal Cartel Agency and private litigants have focused on the antidiscrimination rules of GWB section 26.2. Two cases deserve particular attention.
The first was a result of the successful development and reorganization in the 1970's of
BMW's distribution arrangements into exclusive dealing agreements. In the course of this
reorganization BMW had refused to consent to the request of an authorized dealer to
represent a second make; when the dealer actually entered into a second agreement,
[*592] BMW terminated its franchise. n35 The dealer rested its complaint on the antidiscrimination rules of GWB section 26.2, which prohibit discriminatory practices that are
not justified by objectively valid grounds. In applying this standard the courts balance the
interests of the parties "in the light of the antitrust objective to protect the freedom of
competition." n36 The Federal High Court held that BMW's interest in establishing an optimal
distribution system did not suffice to justify its refusal to allow the dealer to represent a
second make. Further, the Court held that BMW's treatment of other authorized dealers and
the economic situation of the plaintiff should be taken into account. Since the Appeals Court
had failed to deal with these issues, the case was reversed and remanded. n37
The Federal High Court's readiness to protect the entrepreneurial freedom of authorized
dealers was not reflected in the Court of Appeals decision. The Stuttgart Appeals Court, n38 in
reconsidering the interests of both parties, came to the conclusion that BMW's insistance
upon an exclusive distribution agreement was justified under the circumstances of the
present case and this conclusion was finally affirmed by the Federal High Court. n39
The outcome of the BMW case is in line with the second case, VW-Original-Ersatzteile II. n40
In this case the Federal Cartel Agency had attacked the exclusive buying arrangements
contained in the Volkswagen dealer contracts, which required that the dealers use only socalled "original" spare parts. "Original" spare parts are produced by the supply industry, but
spot-checked and sold by Volkswagen. The Federal High Court concluded that these
exclusive buying requirements were not an unfair restraint on competition, either for the
authorized dealers or for the independent wholesalers and the supply industry. This
cnclusion can be explained at least partially by the fact that the Volkswagen Dealer Council,
through its official representatives, had expressly approved of these restrictions. n41 But this
does not affect the meaning and the impact of the Federal High Court's conclusion for the
[*593] relation between the manufacturers and their dealers. The managing function of
the distribution system was allocated to the manufacturer and thus the de facto vertical
integration of the distribution system was accepted -- with the result that the
entrepreneurial independence of the authorized dealer became, as a matter of antitrust law,
insignificant.
But how is this attitude consistent with the dealer protection provided for by contract law?
Should the recent development of antitrust law be reversed? Should, instead, the antitrust
development be incorporated into contract law? Do we have to understand the latest
decision of the Federal High Court repudiating any protection of the Opel dealers'
contractual territory as a concession to the antitrust law's bias in favor of the
entrepreneurial freedom of the manufacturer? The answers to these questions comprise
most of the balance of this paper.
II. CONTRACT AND ANTITRUST LAW IN CONFLICT
As a rule, at least in Germany, inconsistencies between contract and antitrust law for
historical and systematic reasons provoke questions, if not irritation. One source of such
uneasiness in that both contract law and antitrust law have used the competitive process
as a focal point: the "classical" justification for the principles of freedom of contract and the
"formality" of contract law explicitly relied on the competitive process to regulate the
"fairness" of contractual bargaining. n42 Moreover, the most influential school of legal theory
of the postwar period in Germany, the "ordo-liberal" theory of legal and economic
institutions, n43 expressly allocated to antitrust law the function of "reestablishing" the basis
for competition in a "private law society"; and the ordo-liberals tried to set up a
corresponding theory of contract. n44
In this section, I briefly outline two possible conceptual bases for, and one possible
objection to, the antitrust decision of the Federal High Court in VW-Original-Ersatzteile II
and point to the consequences of each of these competition policy approaches for the
application of the contract law rules of the Standard Terms Act. I then review the efforts
[*594] of German legal literature to identify criteria controlling automobile dealer
contracts and analyze the implications of these criteria for competition policy objectives.
Finally, I examine Macneil's approach for its capacity to elucidate the interdependence
between competitive processes and contractual behavior.
A. Antitrust Law Concepts and Their Implications in Contract Law
Competition policy looks highly selectively at the contractual relations between firms acting
at different levels in the distribution chain. Competition policy is concerned only with the
"external" effects that result from contractual agreements and not with the reasonableness
(the "fairness", the "reciprocity of obligation") of contractual agreements. Nonetheless,
antitrust law policies are significant, at least indirectly, for contract law.
1. THE LEGALIZATION OF VERTICAL RESTRAINTS ON COMPETITION AND EXCHANGE
REALTIONS BETWEEN MANUFACTURERS AND AUTHORIZED DEALERS
The Federal High Court's legalization of Volkswagen dealers' exclusive buying clauses can
hardly be surprising for observers of the present development of American law on vertical
restraints on competition. The Federal High Court's decision corresponds exactly, in its
outcome, to the re-orientation of antitrust politics which the Chicago School has been
promoting for many years and which the present administration seems to be determined to
carry through. n45 In Volkswagen-Original-Ersatzteile-II the simplest reasoning in favor of
legalizing the vertical restraints on competition would seem to suffice: when consumers
expect expert after-sales service of durable consumer goods, the manufacturers and dealers
who offer such services must safeguard themselves against free-rider activities.
Thus, antitrust concern with vertical restraints seems, in principle, to be superfluous in such
cases. Both the manufacturer and the dealer have an interest in the success of the
marketing system as a whole. Furthermore, the manufacturer will not wish to allow
excessive profits to be amassed at the retail level. n46 This justification for the use of vertical
[*595] restraints serves precisely for the tied purchasing in question in the Volkswagen
case. n47 It is possible, according to the reasoning of the Federal High Court, to conceive of
the sale of spare parts as an integral part of a comprehensive "package" or even of one
"good", namely after-sales servicing, or even to conceive of the sale of new automobiles
and after-sales servicing as one economic unit. n48
Accepting economic efficiency of the manufacturers' distribution networks as a primary
concern of antitrust law makes any contractual provision which endangers this objective
appear unsound. Thus the economic analysis of authorized dealers' contracts has been
concerned with identifying provisions that increase efficiency and reject those that decrease
efficiency. American literature invoking such economic analysis is impressively
comprehensive. Rubin, n49 for example, opposes the capital market explanation of
franchising -- according to which the manufacturer is in search of financially strong partners
n50
-- and derives the balance of rights and obligations of franchised business operators from
the search for efficient mixtures of centralized supervisory functions and decentralized
economic incentives. n51 Hence, supervisory functions must be fulfilled "centrally" whenever
it would benefit the individual dealer not to comply with his contractual obligations or with
the quality standards set out by the manufacturer. For this reason, establishing central
controls is in the interest of both parties to the contract. Practically, this analysis means that
both antitrust and contract [*596] law intervention in relations between the parties
concerned would endanger the economic efficiency of the distribution system. n52
2. WILLIAMSON'S CAVEAT
Among authors who, though favoring an economic approach to the objectives of antitrust
law, do not subscribe whole-heartedly to the arguments reviewed above, O. E. Williamson is
especially interesting because he considerably alters the neo-classical approach. This
modification becomes relevant not only in assession vertical restraints, but also in analyzing
long-term contractual relations. Williamson's economic actors -- the manufacturers, dealers,
and consumers -- are only "boundedly" rational and behave "opportunistically". Thus, even
when vertical restraints can be shown to be efficiency-enhancing, negative effects on
competition are still conceivable. This holds true for exclusive dealing agreements where
restrictions placed by dominant oligopolistic firms function as barriers to entry for new
rivals. It is also true for other forms of vertical restraints when such forms are used
uniformly by all the members of a tight oligopoly "and when they regularize trade and
promote greater oligopolistic interdependence," unless "they can affirmatively demonstrate
that nontrivial transaction cost economies are achieved by the vertical restraint under
scrutiny." n53
The same behavioral assumptions which underlie Williamson's reservations about an
undifferentiated legalization of vertical restraints on competition are also the basis for his
"economics of governance." The economics of governance deals with the diverse forms of
private ordering which take the place of market processes and interpret each of these forms
as a specific means to minimize transaction costs. n54 The [*597] governance structures
established by means of long-term contracts -- like those between automobile
manufacturers and dealers -- can then be explained by the efforts made to "organize
transactions so as to economize on bounded rationality while simultaneously safeguarding
them against the hazards of opportunism." n55
The renunciation of complete vertical integration, i.e. the conservation of a bilateral
structure, is compatible with this analysis. The preservation of bilateral structures shows
only that the transaction-specific investments of the manufacturer and the required
adjustments of the contracts can still be achieved, despite the "autonomy" of the dealer. As
to the impact of antitrust policy on the internal structures of the relations between both
parties, however, Williamson apparently understands antitrust law reservations about
vertical restraints as an external limit to freedom of contract for the parties concerned and
not as a basis for intervention in the contractual relationship.
Neither does the replacement of the very general notion of economic efficiency by the
concept of minimization of transaction cost lead to specific requirements controlling the
freedom of contract. Williamson's sole concern is the realization of efficiency objectives by
means of different governance structures. n56 It does not, therefore, come as a surprise that
B. Klein, n57 who refers to Williamson's categories in his analysis of exclusive dealing,
defends the manufacturers' right to unilaterally terminate such contractual relations and
that he sees no reason for prohibiting seemingly unfair contractual provisions. n58 On the
contrary, sanctions which may appear excessively harsh can be an economically useful
means of protection against opportunistic behavior which cannot be supervised individually
at all, or where such supervision would involve excessive costs. n59
[*598] 3. DYNAMIC CONCEPTS: COMPETITION AS A "DISCOVERY PROCEDURE" AND THE
CONCEPT OF "EFFECTIVE" COMPETITION
The dominant trend of competition theory in Germany has been very much influenced by
F.A. v. Hayek's theory of "complex phenomena" and by his formula of "competition as a
discovery procedure." According to v. Hayek, competition is not a means to realize concrete
objectives but rather a coordination mechanism whose effectiveness rests upon the
behavior and ingenuity of private actors. n60 The regulation of competition, therefore, must
focus on an abstract goal. Its task is to further the search for "better" solutions by private
actors, whether "better" refers to better quality, more favorable prices, product innovations,
or better sales conditions. n61
The efforts of basing the assessment of vertical restraints on these premises, however, have
produced contrary results. On the one hand, vertical restraints on competition are treated
as a legitimate means of quality competition. This leads to the same practical conclusions
favored by adherence to the efficiency rationale of antitrust law. n62 On the other hand, the
"traditional" objections to vertical restraints on competition are recalled, control of market
power is declared to be a goal in itself and, above all, the dynamic elements of the
competitive process are defended. n63 Thus the main concern, especially in oligopolistic
conditions, would be to break down entry barriers in the extension phase, to intervene
against strategies of ousting competitors from the market in the stagnation phase, and to
insist on less restrictive alternatives to tie-ins or exclusive pruchasing provisions wherever
such altermatives are conceivable.
VW- Original-Ersatzteile II n64 -- when measured against these criteria -- appears to be
unsound. The last-named "dynamic" aspects are precisely the ones, in Germany n65 as in the
U.S., n66 which are brought [*599] into play against vertical restraints by the adherents to
"workable" or "effective" competition concepts. Thus new demarcation lines emerge
between the competing schools of competition theory. Notwithstanding the categorical
insistence of the adherents to the "workable competition" concept and the "freedom-tocompete" approach upon their theoretical and methodological differences, the practical
conclusions reached by some representatives of these schools are the same, whereas the
differences between the Chicago School and the concept of freedom of competition turn out
to be practically insignificant for some of its supporters.
I am concerned here not with a detailed re-tracing of the differences between the various
approaches to competition policy, but solely with their significance for the position of the
authorized dealer. This singificance lies in the fact that dynamic concepts of competition
policy partially rehabilitate the protection of the dealers' entrepreneurial freedom as a
legitimate concern of antitrust law, albeit without leading to a simplistic harmony of
antitrust objectives and contract law principles. The questions thus raised are complicated.
To what extent are decisions concerning the marketing strategies of the distribution system
and control functions to be unilaterally vested with the manufacturer in the interest of the
"flexibility" or "efficiency" of the distribution system? To what extent can demands for ex
ante definitions of dealers' obligations be reconciled with the need for such a centralization
of power in the manufacturer? How can we be sure that the protection provided for by
contract law will be used for competitive purposes by dealers? The dependence of the
answers to all these questions on the specifics of the distribution system concerned, and on
the competitive conditions in each case, buries any hope of general definite solutions to the
problem of coordinating competition policy and contract law objectives.
B. Contract Law Principles
A review of the German literature on the criteria ensuring contractual justice in the
manufacturer-dealer-relationship can be restricted to a brief comment. Since the passage of
the Standard Terms Act in 1976, AGBG section 9 serves as a starting point for the pertinent
discussions. The reference in AGBG section 9.2(1) to fundamental ideas underlying "optional
rules of law" n67 serves as one starting point in the examination of automobile dealer
contracts. Additional criteria are derived [*600] from basic legal principles, valid
regardless of an explicit recognition by positive contract law rules and/or from the general
objectives of the Standard Terms Act.
1. DEALERS' "BEST EFFORTS" COMMITMENTS AND MANUFACTURERS' "LOYALTY"
OBLIGATIONS
The primary source for optional rules of contract law within the meaning of AGBG section
9.2(1) is still the German Civil Code of 1900 and its contract law sections. However,
neither the Code nor any other piece of legislation has ever proposed specific rules for
franchise agreements. Thus, there are no "optional rules of law" available from which the
standardized automobile dealer contracts could deviate. Nonetheless, where no such
legislative model exists, then, following legal traditions which have shapped judicial
supervision of the contents of contract, n68 an adequate model should be constructed with
the help of related legal institutions.
In an influential study long before the enactment of the Standard Terms Act, Ulmer
proposed such a model for authorized dealers' contracts. n69 Ulmer characterized
manufacturer-dealer agreements as "framework contracts" of a specific kind, which commit
the dealer to safeguarding the manufacturers' interest while creating an obligation of
"loyalty" on the part of the manufacturer towards his dealers. n70 From this quid pro quo of
"safeguarding of interests" versus "loyalty", Ulmer obtained criteria which recognize the
manufacturers' discretionary power but at the same time control its use. Thus, the
manufacturers' discretionary rights correspond to the powers of the principle vis-a-vis his
agent, n71 whereas the manufacturers' obligations correspond to the authorized dealers'
legitimate business interests. The manufacturer must therefore respect the authorized
dealers' assets in the exercise of its marketing policy. This aligns closely with the position
later adopted by the Federal High Court in the Ford case. n72 In sum, the manufacturer is
granted unilateral ability to act, which must not, however, be [*601] used to contravene
the dealers' expectations created by the manufacturer's promise. n73
2. PRINCIPLE OF "CONCRETIZATION"
The issue presented by the general adjustment provision in the Opel contract n74 proved to
be even more troublesome, producing two incompatible principles. On the one hand, the
German Civil Code takes into account the need for later concretization of one party's
obligations and explicitly provides for such unilateral modifications. It requires, however,
that the exercise of such rights be fair and open to subsequent review by courts. n75 On the
other hand, the principle of concreteness is also universally recognized, even without being
explicitly stated in any section of the Civil Code or of the AGBG. According to the principle,
parties to a contractual agreement must specify the obligations into which they wish to
enter. n76
The tension between the two principles has become most acute under the Standard Terms
Act of 1976. The reservation in standard printed forms of unilateral rights to modify
contractual obligations means that the party exposed to such a contract cannot be
effectively protected by means of an ex ante judicial review. But, according to the approach
adopted by the Standard Terms Act, judicial review serves as an indispensable substitute for
the process of individual negotiation in generally guaranteeing the "fairness" of an
agreement. Consequently, there has been broad recognition of the principle that unilateral
rights to change contractual obligations must not be contained in standard terms. n77 There
are few rules, however, without exceptions. Thus, the principle of "concreteness" must give
way under certain conditions -- "legitimate need" or "objective necessity" n78 -- provided that
the adjustment clause itself has been defined as precisely as possible. n79
[*602] 3. IMPLICATIONS FOR COMPETITION POLICY
Both approaches to the supervision of the contents of authorized dealers' contracts -- the
definition of a model for manufacturer-dealer relations and the demand for an ex ante
concretization of adjustment provisions -- are in a state of tension with competition policy
objectives. This conflict can of course be kept latent to a large extent. The characterization
of authorized dealers' contracts as a kind of agency contract n80 means above all that binding
of the dealer exclusively to one manufacturer is not open to attack; the dealer's
commitment to the manufacturer corresponds to the "loyalty" he owes as an agent.
Moreover, this characterization ensures that the manufacturer has authority within the
distribution scheme similar to the right of the employer to instruct his employee. In relaxing
the applicability of the "principle of concreteness," one may differentiate between various
areas of managerial policy and so meet the manufacturer's need to react flexibly in
interbrand competition.
The conflict with competition policy, however, is unavoidable to the extent that the
agreement between the parties creates property rights for the dealer or restricts the
discretionary power of the manufacturer. There will be conflict whether the discretion is
restricted by prohibiting adjustment provisions or by controlling their use. The conflict is
obvious insofar as, in the name of economic efficiency, management functions and
discretionary rights are allocated to the manufacturer. Conflicts may also arise, however,
with dynamic competition policy approaches. These approaches tend to support the
entrepreneurial freedom of the dealer in order to protect the dynamics of the competitive
process on the retail level. But, they would more readily accept the efficiency rationale for
rigorous vertical restraints on new entrants or small firms when such restraints form part of
an aggressive marketing strategy which intensifies interbrand competition. n81 The flexibility
of competition policy measures required by such approaches is incompatible with contract
law rules which contain general protection standards and reciprocity norms.
C. Relational Contract Law
Macneil's theory of relational contract law is an integral part of a more general theory of
contractual behavior n82 and was not intended to provide guidance for decisions on concrete
conflicts, and certainly not [*603] for the extremely specific problems of a foreign legal
system. Nonetheless, the conflict in the law affecting German automobile manufacturers
and their dealers seems to raise exemplary substantive and methodological problems for
contemporary contract law, suitable for recourse to general theories of contract law. I
will first describe the exemplary qualities of the manufacturer-dealer relationship; I will then
use Macneil's taxonomy of relational contracts to describe the conflicts presented; and
finally I will ask whether there are systematic reasons (i.e., reasons inherent to the "design"
of Macneil's theory) restricting its relevance for coping with the problems of contemporary
contract law.
1. THE MANUFACTURER-DEALER RELATION AS A MODERN STATUS RELATION
My characterization of the problems of authorized dealers contracts is not backed by
detailed historical, economic, and sociological analyses. The legal and conceptual problems
can nevertheless, in many ways, be called typical of long-term relations. Most importantly,
the interdependence of antitrust regulations and contract law rules is an integral facet in
the manufacturer-dealer relationship. This interdependence is the unavoidable result of the
complexity of the conflict situation. This complexity is typified in three key ways. First,
contract law is concerned primarily with the relations between the two main actors. But,
limiting the number of parties provokes conflicts with competition policy, which is concerned
with the external effect of the contractual relation and thus with the protection of those who
are not party to the contract as well. Second, the complexity of the conflict situation results
from the fact that different legal concepts are propagated throughout both contract and
antitrust law. At the same time, regardless of the outcome of the controversies, the
rationality criteria pursued by contract and antitrust law can never be perfectly harmonized.
Third, in both fields courts are urged to consider economic and social facts; they are
confronted with competing conceptual deliberations and with conflicting interests and
"rights". Guidance is offered neither by the legislator -- who tends to delegate his regulatory
capacities by means of general clauses -- nor by academic doctrines adhering to nonrealistic legal concepts or proposing extremely vague and incoherent principles. n83
Although the points mentioned so far are certainly not commonly agreed upon, they are
formulated so as to be acceptable at least as a [*604] designation of relevant problems.
My designation of the "core of the conflict" may, however, be less acceptable, i.e. the
conflict between contract and antitrust law is concerned with the evolution of a new status
relationship. This view of the precarious situation of authorized dealers as a "status"
phenomenon can point to the indefinite commitment of the dealer to a specific manufacturer
and the partial abandonment of his independence as an entrepreneur. This characterization
must, of course, be further specified and substantiated. Nonetheless, it is compatible with
the observed indifference of dealers towards the restraints on their entrepreneurial freedom,
their thus greater sensitivity concerning their own economic dependence, their readiness to
engage in collective action and their criticism of manufacturers' discretionary powers. The
objectives of contract law cannot thus be confined merely to organizing the exchange of
goods, money, and services between two firms; they include the social regulation of
conflicts resulting from specific dependencies within "economic" relations.
2. THE AUTHORIZED DEALER'S CONTRACT AS A RELATIONAL CONTRACT
Macneil's most important message for the German discussion about long-term contracts is
that one must abandon traditional ("classical") notions about exchange relations and refocus
upon relational elements in contract law. Macneil's most impressive and, for the present
German debate, helpful achievement is that he has developed a "rich classificatory
apparatus" n84 to express his intuitively appealing message.
Macneil describes a group of reference points which abstract from the "real" development of
contract law concepts, but which can be used to analyze various exchange relations. n85
Thus, he understands so-called "classical" contract law as being a specific model for the
organization of exchange relations, a model based on the transaction paradigm of neoclassical micro-economics which negates relational elements of contracts. Modern
contractual relations are, however, interwoven with a society marked by "great complexity,
extremely high specialization and constant change." n86 Under these conditions, the
relational elements in organizing exchange gain ever greater significance and prove the
discrete transaction model to be increasingly inadequate.
[*605] Macneil demonstrates this increasing relationalism by means of seven key
characteristics in which discrete transactions differ from relational contracts: n87 (i) the
relational exchange does not begin at a precise point in time and has no definite end; (ii)
the commencement is characterized by ongoing negotiations and the duration of the
contract may remain indefinite; (iii) the performance can and must often be measured and
specified not at the commencement of the agreement but during the course of the contract;
(iv) the parties' planning refers not only to the exchange conditions but also to future
interaction and performance; (v) the planning may be cooperative or unilateral; (vi) unlike
discrete transactions, the contractual relations cannot afford to neglect expectations
resulting from ongoing interactions; and (vii) in contrast to discrete transactions, with
relational contracts there is no set, long-term power structure.
Although Macneil has thus characterized long-term relations generally, he has not dealt
extensively with franchise relations. His general statements -- and their reception in the
literature on franchising agreements n88 -- do, however, allow a reformulation of the current
controversies over authorized dealers' contracts under the German Standard Terms Act,
specifically with regard to the "principle of concreteness" as a means to control the
contractual agreement. Thus, the Opel dealers' demands for concretization of the rights and
obligations of the parties are incompatible with the relational elements of their agreement.
It is indispensable for both parties that the contractual relation can be adjusted to allow for
changing conditions.
In his critique of the Restatement (Second) of Contracts, Macneil n89 analyzed the fixing of
future behavior by contractual provisions as typical for classical contract law but
inadequate for relational contracts. Relational contracts must cope with the problem of
irreducible uncertainty about future conditions and behavior. Macneil could interpret the
partial retreat from this principle by German courts and writers as a growing awareness of
the limits of contractual planning. n90
Macneil's analysis is similarly helpful for interpreting the result reached by the Federal High
Court in the Ford case. The Court based the restriction it imposed on the manufacturer's
right to unilaterally [*606] reduce the dealer's market responsibility area on two
arguments: first, on an "objective" interpretation of the contractual provisions of the Ford
agreement ensuring the protection of the dealer's expectations as to the "value" of his
franchise and, second, on the "analogical" application of the rules governing the termination
of commercial agents. n91 Both arguments can thus be interpreted as a recognition of
reciprocity norms with "neo-classical" means. n92 The Federal High Court's refrain from a
more precise definition of the adopted standards -- thus imposing a duty on the parties to
renegotiate their relation -- may be interpreted by Macneil as the emergence of truly
relational contract law. n93
Furthermore, Macneil may conceive of the potential impact of antitrust law and the
legalization of vertical restraints on the contractual relations of manufacturers and dealers
as typifying the interrelationship between contract law and its social environment.
Antitrust rules are but one among many social responses to contractual behavior. n94
Relational contract law may turn out to be flexible enough to adapt even to the constant
changes that dynamic competition policy concepts would require. In contrast, establishing a
hierarchy which allocates discretionary power exclusively to one party to the agreement is
hardly compatible with the internal dynamics of long-term relations. Any effort to establish
such a "governance structure" may prove to be paradoxical: since the legalization of vertical
restraints on competition will intensify the cooperation between the parties, the attempt to
monopolize all managerial functions in the manufacturer must provoke destructive reactions
on the part of the dealers. n95
3. MACNEIL'S CRITICISM OF ECONOMIC ANALYSIS AND THE PROBLEM OF REGULATING
RELATION CONTRACTS
The merits of Macneil's reformulation of problems, which he achieves by abandoning the
"classical" paradigm, can hardly be overestimated. But, legal practitioners cannot be
satisfied with such theoretical reformulations. The attractiveness of the economic analysis of
law [*607] for academics as well as for practitioners may be largely due to the fact that
the principles of "economic efficiency" seem to satisfy the need for "objective" criteria, the
more so since these criteria are "justified" by sophisticated reasoning purporting to further
"social welfare." Macneil, however, does not accept this way out: "The micro-economic
model assumes the existence of very complex relations between the parties. But once such
relations are assumed, the impact of those relations on the analysis is typically ignored." n96
The whole categorical apparatus of economic analysis systematically abstracts from the
relational elements of modern contractual relations. It thus neglects the reality of
contractual behavior and fails to take into account the specific values accompanying the
development of relational contracts. This critique applies as well to Williamson's further
refinement of the micro-economic analysis of contract law into a transaction cost analysis
of governance structures. According to a central objection, n97 Williamson treats the two
parties to the contract as members of one "maximizing unit." This objection questions the
consistency of one "maximizing unit." This objection questions the consistency of
Williamson's approach as well as its explanatory power. n98 An economically rational
governance structure cannot be conceived of as a "choice" of "boundedly rational" actors
because boundedly rational actors cannot "choose" a perfectly rational governance
structure.
Macneil's reservations regarding every version of economic analysis do, however, provoke
the question of which alternative criteria may serve as a guide to assess relational
contracts. Macneil did not avoid this question. In the "Postscript" to Values in Contract n99 he
reveals short, but illuminating suggestions as to the possibilities and the costs of social
change, the dangers inherent to the growth of "bureaucratic dinosaurs," and his counterperspective of "social and economic smallness." Macneil insists, however, that such
normative suggestions are a highly personal ideology which he would like to separate from
his theory. n100 Indeed, Macneil's criticism of classical contract law and the neo-classical
paradigm does not refer to its moral or philosophical underpinnings, but rather to
"objective" social developments. n101 In this respect, relational contract law is nothing other
than a "functional" response to the deficiencies of an outmoded model. The ideological and
[*608] political neutrality of the concept is perfectly consistent with the method used in
Macneil's analysis of new values and norms accompanying the emergence of relational
contract law. n102 Thus, the detection of such values is by no means a methodological
equivocation but presupposes only that contractual behavior is always tied to the
recognition and further development of values and norms. n103
The question whether relational contract law theory claims to guide the judicial decisionmaking process seems thus to be answered in the negative. But is this answer really
conclusive? How is Macneil's normative individualism compatible with his assumption that
certain values and norms will develop together with relational contract law? How is his
characteristically neutral, apolitical assessment of social development -- as "increasing
complexity, extreme specialization and constant social change" -- compatible with the
observation that individual behavior is necessarily determined by commonly held values?
Doesn't the history of labor law, which seems to have taken the lead in the breakthrough of
relational contract law, demonstrate that the abandonment of the discrete transaction
model cannot be understood adequately as a merely functional adjustment to changing
social conditions? Can the rivalry between discrete norms and relational norms, between the
attempts to treat the relational elements of long-term contracts within the old neo-classical
paradigm and the effort to take these relational elements expressly into account by means
of relational contract law really be treated as a highly personal decision or should we treat
such developments as social and political processes?
All these questions can once more be illuminated by the controversy surrounding the
manufacturer-dealer relation. The inadequacy of the discrete transaction model certainly
becomes plausible in view of Macneil's "objective" developments. But, the distinct motives
for, and the practical consequences of, the various "adaptions" to these developments differ
fundamentally. The manufacturers' incentive to emphasize the necessity and advantages of
long-term cooperation with the dealers may arise only in order to reject antitrust law
regulations, with the intention of passing off objective constraints as a justification for the
use of discretionary power vis-a-vis the dealers. In contrast, the dealers are concerned, in
their demand for legal control, with safeguarding their individual assets and protecting
against "unfair" terms and unilateral rights. Since both parties to the conflict insist upon the
legitimacy of their points of view, we should be cautious not to lose sight of the "core of the
conflict" when interpreting the argument on the adequate [*609] legal form of their
contractual relation. To conceive of this argument simply as a discussion on the merits of
"neo-classical" or "relational" contract law, of either a hidden or explicit legal response to
relational elements in contract law, abstracts the controversies being fought out by the
participants on the legal status of "quasi-entrepreneurs".
III. A BRIEF CRITIQUE OF MACNEIL'S RELATIONALISM FROM A FOREIGN PERSPECTIVE
Even if the choice of example is fortunate, at best it can only develop the qualities of an
allegory, illuminating the limits of theoretically founded doctrinal systems and, perhaps,
supplying intuitive comprehension. Qualities like these, however, are insufficient to fulfill the
demands of academic discourse. Accordingly, I would like to put my questions to Ian
Macneil in a more general context. To do this, I will refer to the main subjects of contract
law theory in Germany and introduce three categories, namely the terms "formal",
"materialized", and "relational procedural" law. Of course, this approach consists of
references to broader discussions which can only be hinted at here. n104
A. The Critique of Classical Contract Law
Of the three contract law models developed by Macneil, "classical" contract law is the
one foreign observers are most familiar with. For a concrete example of this contract law
model, Macneil refers to the doctrinal concepts of the 19th century n105 -- in Germany such
concepts find their equivalents in the work of Friedrich Carl von Savigny, Georg Friedrich
Puchta and Bernhard Windscheid. n106 The common treatment in Germany of these classicists
focuses on the relationship between legal doctrine and neo-classical micro-economic models
and then questions the suitability of these concepts in contemporary economic, political, and
social conditions. A closer examination, however, of von Savigny and an analysis of the 19th
century innovators -- in Germany above all Rudolf von Jhering -- makes this historically
qualifying critique [*610] unsatisfactory. The "classical" authors did not refer to microeconomic models in founding their central categories, nor would they have been satisfied
with such models. These authors were clearly aware that they had to resort to some
additional "practical" intuition for their dogmatic concepts and for those concepts'
application.
This problem can be clarified by comparing von Savigny's historical and systematic
jurisprudence with Kant's legal philosophy. Savigny's fundamental dogmatic definitions read
like paraphrases of Kantian theories. n107 In transforming Kant's categories into legal
concepts, however, Savigny dissociated himself from Kant's philosophy and social theory.
From the very beginning, "classical" legal doctrine thus detached itself from the level of
justification demanded by its philosophical godfather and took account in an impenetrably
hidden form of the expections and demands of its societal surroundings.
B. The Crisis of the "Materialization" of Classical Formal Law
A recollection of the discrepancies between the philosophical premises and the practical
achievements of "classical" legal concepts has not only historical significance, but a much
broader systematic one as well. Such a recollection is meant as a critique of the legitimacy
of classical legal concepts, which at the same time questions current interpretations of postclassical legal development. Thus, the "unsuitability" of classical contract law is concerned
with a failure of the classical liberal idea that the legal order has been or could be
legitimized by Kant's moral and social philosophy.
The core of this idea in private law was the conceptualization of legal positions as
autonomous rights, in contract law as private autonomy, freedom of contract, protection
of the free formation of contractual intent, etc. It was this equation of rights with freedom
that the post-formal development of civil law in general, and contract law in particular,
had to give up. The growing complexity of "private" relations and dependencies, the
intensification of division of labor and functional differentiation of society largely effectuated
this erosion. But the process of "adjustment" of contract law to social change implies a
more profound restructuring of the law itself: post-formal law deals increasingly not only
with the protection of freedom, but with legal assessment of societal needs and interests.
[*611] Legal sociology, jurisprudence and legal theory have been held in suspense by this
process of change since the beginning of this century. Max Weber analyzed it as a decline of
formal rationality and as an irrational remoralization and repolitization of law. n108 The ordoliberal theorists sought to impose new legal institutions on the economy which would
prevent any abuse of economic power and thus guarantee the "legitimacy" of a liberal
economy and society, while their welfare state antipodes felt the state to be capable of
transforming the liberal economic order into a democratic society. n109
Today it is commonly accepted that neither ordo-liberalism nor welfare-state
interventionism could successfully cope with the problems diagnosed by Max Weber. But
does this failure justify Weber's interpretation of post-formal developments as a regressive
tendency? If, as was suggested above, the classical ideal of a legitimized legal order of
society was bound to fail, then the interpretation of post-formal tendencies as a regression
of formal rationality is at best one-sided. n110 The differentiation between classical and postformal law would consist only in the fact that the former still burdens itself with
philosophical claims -- which Max Weber did not take seriously -- while the latter abandons
such efforts and does not even recognize any uniform notion of rationality. The
transformation of formal law induced by the legal recognition of societal needs and interests
should not be interpreted as some tragic regressive tendency, but rather as the unavoidable
production of colliding legal positions, which are constantly balanced and restricted without
any guidance by generally acceptable normative criteria.
C. The "Proceduralization" of Law
In addition to the thesis that the crisis in formal law reflects a crisis in classical legal social
philosophy, it is similarly theoretically risky to claim that the materialization of formal law
must fail because no universally acceptable criteria are available for the assessment of
colliding legal positions. Such a claim presupposes that the legal system cannot detach itself
from demands for normative justification and that practical and moral discourse is not
simply meaningless.
[*612] To hint at the possible defense of such claims, I must refer to the school of moral
philosophy represented above all by Ernst Tugendhat. n111 According to this school, Kant's
theory of universally valid, subjective, synthetic moral judgments can be understood as the
first level in the development of a "formal" notion of justice. The second level of this
development, the "flexibility" of moral judgments ("flexible Vernunftmoral") is related to the
"materialization" of law. Flexibility means the openness and situational relativity of
normative decisions, observed by Tugendhat as "progress" compared with Kant's rigid
version of a formal theory of justice. The third level is called "discursive morality"
("diskursive Vernunftmoral"). At this level, justifying the content of rules or principles is
abandoned and replaced by the justification of procedures guiding the discourse of synthetic
moral judgments. Rudolf Wietholter adopted this idea in his project concerning a
"proceduralization" of law. Proceduralization is an option for the establishment of legal
discourse which would allow for an impartial synthetic judgment of colliding interests. n112
What is the significance of all this for a contract law theory? The terms "formal law,"
"materialization", and "proceduralization" do not allow the design of a new contract law
model, but they might clarify the context of my questions to Macneil and my own preoccupation with "relational contract law." My problems with Macneil begin already at the
point of his dealing with "classical" contract law. If fundamental classical legal concepts
are brought into the context of "classical" social philosophy, if, as far as German traditions
are concerned, Kant's legal philosophy is understood as being the "valid" version of the
formal law category, then this leads to a critique of classical contract law which goes
further than Macneil's. Classical contract law is not merely a selective model, nor one
which is merely sociological outdated today. My critique rather concerns the
conceptualization of rights as freedom and the claim that institutionalized rights are
therefore satisfactory guarantees for a legitimate social order.
This difference goes further in the analysis of post-formal law. Macneil interprets the
"conventional" development of classical to neoclassical law as an attempt to come to terms
with social change within the framework of the old paradigm. My use of the term
"materialization" stresses, on the other hand, the interrelation between the "congenital
defects" of classical contract law and the post-classical legal recognition [*613] of needs
and interests. The process results in legal protection of social positions, movement towards
supervision of the contents of contracts, control of contractual behaviour by means of
regulations motivated by social and economic policies, and the flexibility of doctrine -- with
the constant repetition and permanent failure of the attempt to attain "material" legal
principles (synthetic practical judgments) for a decision on conflicts between colliding rights.
My interest in the concept of relational contract law likely has thus, for Macneil, a
surprising background. I interpret his concept as a possibility for overcoming the
abstractions from social problems by means of classical and also neo-classical contract
law. For exactly this reason, however, I insist the the social problems and conflicts
concerned be recognized as such and that the colliding legal claims be taken seriously.
Wietholter would like to promote this point with his idea of a proceduralization of law. The
hope connected with this vision is not that such discourse would "automatically" produce
"justified" principles, but rather that the participation of those concerned and the need to
justify claims in such conflict forums would improve the level of practically and morally
legitimized principles and duties.
IV. CONCLUSION
The Comment started with a concrete example and practical legal problems and has ended
in unsettled theoretical speculations. In conclusion, I would like to stress the role of Ian
Macneil's work in this venture. Macneil's theory provides at least an illuminating framework
for understanding the difficulties observed in the legal assessment of the manufacturerdealer relationship by German courts and legal writers. It tells us why conventional
doctrine fails to guide the judicial supervision of these relations. But, at the same time,
Macneil explains and encourages the search for fairness and reciprocity of contractual
obligations. Furthermore, Macneil's comprehensive concept of contractual relations not only
helps us to understand the unsettled tension between contract and antitrust law
developments in Germany but also to reject one-sided concepts of "efficiency" as a guide to
re-establish coherence between antitrust and contract law. My questions to Macneil thus
only start from a broad range of commonly held views. Finally I must admit that the
theoretical basis as well as the practical consequences of my insistence upon normative
judgments in assessing conflicts between colliding "rights" is for the time being nothing
more than a vision in need of clarification.
Legal Topics:
For related research and practice materials, see the following legal topics:
Antitrust & Trade LawPrice Fixing & Restraints of TradeVertical RestraintsResale Price
MaintenanceBusiness & Corporate LawDistributorships & FranchisesCauses of
ActionRestraints of TradeAntitrust & Trade LawPrice Fixing & Restraints of TradeVertical
RestraintsNonprice Restraints
FOOTNOTES:
n1 An important exception is W. SCHMID, ZUR SOZIALEN WIRKLICHKEIT DES VERTRAGES
108-13 (1983) who, in his analysis of various European and American efforts at clarifying
the relations between contract doctrine and contractual behavior since Eugen Ehrlich, refers
quite extensively to Ian Macneil's work. See also J. KONDGEN, SELBSTBINDUNG OHNE
VERTRAG 128-29 (1981) and C. JOERGES, Vertragsgerechtigkeit und Wettbewerbsschutz in
den Beziehungen zwischen Automobilherstellern und -handlern: Uber die Aufgaben
richterlicher Rechtspolitik in "Relationierungsvertragen", in FESTSCHRIFT FUR RUDOLF
WASSERMANN 697 (1985).
n2 E. Schanze, Investitionsvertrage im Internationalen Wirtschaftsrecht (unpublished
manuscript Frankfurt 1984), however, has now introduced the "new institutionalism" as a
theoretical basis for the analysis of transnational contracting between governmental and
"private" actors.
n3 3 D. VON STEBUT, DER SOZIALE SCHUTZ ALS REGELUNGSPROBLEM DES
VERTRAGSRECHTS (1982) and Horn, Vertragsdauer, in I GUTACHTEN UND VORSCHLAGE
ZUR UBERARBEITUNG DES SCHULDRECHTS 551 (1981).
n4 See J. BAUR, VERTRAGLICHE ANPASSUNGSREGELUNGEN (1983). See also Steindorff,
Vertragliche Pflichten zur Vertragsanpassung, 148 ZEITSCHRIFT FUR DAS GESAMTE
HANDELSRECHT UND WIRTSCHAFTSRECHT 271 (1984).
n5 See Joerges, Sekektiver Vertrieb und Wettbewerbspolitik: Eine konzeptionelle Analyse
der Entscheidungspraxis von Kommission und Gerichtshof zu Art. 85 EWG-Vertrag,
GEWERBLICHER RECHTSSCHUTZ UND URHEBERRECHT, INTERNATIONALER TEIL 279, 422
(1984); C. Joerges, E. Hiller, K. Holzscheck, H. W. Micklitz, Vertriebspraktiken im KFZErsatzteilsektor: Ihre Auswirkungen auf Die Interessen von Verbrauchern (forthcoming
1985) (Study commissioned for the Commission of the European Community); see also C.
JOERGES, supra note 1.
n6 See Macneil, Values in Contract: Internal and External, 78 NW. U.L. REV. 340, 367-82
(1983).
n7 For an officious statement of this marketing strategy see Bauer, Hersteller-Handelsbeziehungen im Wandel -- Auf dem Weg zu einer dualen Marketing-Fuhrerschaft im
Absatzkanal, 1982 DER MARKENARTIKEL 428. See also B. TIETZ, DER
GRUPPENWETTBEWERB ALS ELEMENT DER WETTBEWERBSPOLITIK: DAS BEISPIEL DER
AUTOMOBILWIRTSCHAFT 182 (1981).
n8 See infra text accompanying notes 28-32. The dealer contract of the Adam Opel AG,
which recently came under judicial control, comprises 170 pages. For a detailed, although
partially outmoded, description of the typical content of automobile dealer contracts, see P.
ULMER, DER VERTRAGSHANDLER 107 (1969).
n9 See infra text accompanying note 41. For an economic analysis, see infra text
accompanying notes 45-59.
n10 See Macneil, The Many Futures of Contracts, 47 S. CAL. L. REV. 691, 734-805 (1974).
n11 This fact is easy to explain: at the commencement of the contractual relation,
manufacturers do not face powerful retail organizations but simply individual dealers.
Important management decisions (such as a new product policy) on which the fate of the
dealer -- who is usually exclusively bound to one manufacturer -- may depend, remain as
much in the control of the manufacturer as a safeguarding of control functions which
concern the whole distribution network.
n12 Macneil, supra note 10, at 770-71.
n13 One practice reported by a spare-part wholesaler is to store non-original parts in the
manufacturers packing materials. See SCHMIDT-MEIER, DISKUSSIONSBEITRAG, in P.
SPARY, MEHR CHANCENGLEICHHEIT IM WETTBEWERB ZWISCHEN INDUSTRIE UND HANDEL
52 (1983).
n14 A dealer may, for example, confront an economically weak manufacturer with the
alternative either to lose his franchisee or to consent to his representation of a second
brand.
n15 See P. ULMER, supra note 8, at 241. See also C. EBENROTH,
ABSATZMITTLUNGSVERTRAGE IM SPANNUNGSVERHALTNIS VON KARTELL -- UND
ZIVILRECHT 43, 61 (1980).
n16 P. ULMER, supra note 8, at 438; C. EBENROTH, supra note 15, at 155.
n17 Handelsgesetzbuch [HGB] § 89b of May 10, 1897, amended by 1953 Bundesgesetzblatt
[BGBl] I, 1197; and 1976 BGBl I, 1197 (W. Ger.).
n18 See O. SANDROCK, Der Ausgleichsanspruch des Vertragshandlers: der
Bundesgerichtshof auf den Spuren des Odysseus, in FESTSCHRIFT FUR ROBERT FISCHER
657 (1979); Bechthold, Ausgleichsanspruche fur Eigenhandler, dargestellt am Beispiel des
Automobilvertriebs, 36 NEUE JURISTISCHE WOCHENSCHRIFT [NJW] 1393 (1983).
n19 1976 BGBl III, 3317 [hereinafter cited as 'AGBG' or 'the Act']. For a more detailed
description including an English version of the complete AGBG, see Sandrock, The Standard
Term Act 1976 of West-Germany, 26 AM. J. COMP. L. 551 (1978). For a comparative
analysis, see von Mehren, A General View of Contract, in INTERNATIONAL ENCYCLOPEDIA
OF COMPARATIVE LAW VII Ch. 1 §§ 77-82 (1982). For an evaluation from a consumer
perspective, see Micklitz & Bohle, Five-and-a-half year German Standard Terms Act: An
Interim Survey From the Point of View of Consumer Protection, in UNFAIR CONTRACT
TERMS IN CONSUMER CONTRACTS 111 (T. Bourgoignie ed. 1983).
n20 AGBG §§ 2, 3 and 6.
n21 AGBG § 21.2 No. 2. The legislative history of this extension of the protection afforded
by the AGBG reflects a peculiar difficulty of the German civil law tradition to comply with
the political challenges of the consumer movement. According to the prevailing view in the
vigorous debate accompanying the passage of the AGBG, the enactment of rules specific to
the producer (dealer)-consumer-relationship is incompatible with the concept of generally
applicable civil law rules. The German Bundestag finally decided to keep to this tradition.
The inclusion of "merchants" into the protection furnished by the new legislation is a result
of that decision.
n22 See P. ULMER, H. BRANDNER, H. HENSEN, AGB-GESETZ: KOMMENTAR ZUM GESETZ
ZUR REGELUNG DES RECHTS DER ALLGEMEINEN GESCHAFTSBEDINGUNGEN ANHANG § 9
P880 (4th ed. 1984).
n23 See judgment of Apr. 27, 1982, Landgericht [LG] Frankfurt 1982 ZEITSCHRIFT FUR
WIRTSCHAFTSRECHT UND INSOLVENZPRAXIS 1224; judgment of June 30, 1983,
Oberlandesgericht [OLG] Frankfurt 1983 DER BETRIEBSBERATER 1435; judgment of Nov.
26, 1984 Bundesgerichtshof [BGHZ], 1985 DER BETRIEBSBERATER 218.
n24 Judgment of Dec. 21, 1983, BGH, 37 NJW 1182 (1984).
n25 Id.
n26 Id.
n27 See supra text accompanying notes 17-18.
n28 These included Opel's right to prohibit a transfer of business assets or any change in
management positions; the handling of the dealer's purchasing orders and the changing of
warranty conditions; the appointment of new franchisees by Opel; the prerequisites of a
termination of the contract; and the compensation to be paid in case of termination.
n29 Judgment of Apr. 27, 1982, LG Frankfurt, supra note 23.
n30 See M. WOLF, N. HORN & W. LINDACHER, AGBG-GESETZ: KOMMENTAR, § 9 P33
(1984) [hereinafter cited as M. WOLF]; see also infra text accompanying notes 74-79.
n31 Judgment of June 30, 1983, OLG Frankfurt, supra note 23: The court started with the
legal characterization of the franchised dealer's contract as a contract for services in the
sense of §§ 675 and 611 of the Civil Code. This starting point allowed the court to accept in
principle the manufacturer's quest for flexible adjustment provisions, but at the same time
suggested some judicial supervision of the adjustment mechanisms employed. This
approach led to the modification of the legal principles that had been invoked by the lower
court.
n32 See supra note 23.
n33 For a comparison of the American and German antitrust assessment of vertical
restraints see I. SCHMIDT, US-AMERIKANISCHE UND DEUTSCHE WETTBEWERBSPOLITIK
GEGENUBER MARKTMACHT 283-342, 377-87 (1973); J. SCHMITT, SELEKTIVER VERTRIEB
UND KARTELLRECHT: DER AUTOMOBILABSATZ ALS BEISPIEL FUR DIE BEHANDLUNG
VERTIKALER WETTBEWERBSBESCHRANKUNGEN IM AMERIKANISCHEN ANTITRUSTRECHT
(1975); both books are, however, outdated in view of the recent American antitrust law
developments.
n34 To be more precise: the Federal Cartel Agency did not by some formal decision
intervene against the practices in the automobile sector; it is, of course, possible or even
probable that control has been exerted in the "shadow" of § 18 of the GWB.
n35 Judgment of July 1, 1976, BGH ("BMW-Direkthandler") 27 WIRTSCHAFT UND
WETTBEWERB [WuW] 1455 (1977).
n36 See W. MOSCHEL, RECHT DER WETTEBWERBSBESCHRANKUNGEN 405-11 (1983).
n37 See supra note 35.
n38 Judgment of Mar. 25, 1977, OLG Stuttgart ("BMW-Direkthandler II") 28 WuW 1846
(1978).
n39 Judgment of June 13, 1978, BGH ("BMW-Direkthandler III") 29 WuW 1624 (1979).
n40 Judgment of Sept. 22, 1981, BGH ("VW-Original-Ersatzteile II"), 81 ENTSCHEIDUNGEN
DES BGHZ 322 (1982).
n41 The position taken by the Volkswagen Dealer Council has been explained by its
chairman Turnwald in 40 DIE BETRIEBSWIRTSCHAFT 641 (1980).
n42 The standard citation to this proposition is F. WIEACKER, DAS SOZIALMODELL DER
KLASSISCHEN PRIVATRECHTSGESETZBUCHER UND DIE ENTWICKLUNG DER MODERNEN
GESELLSCHAFT (1953).
n43 The most important reference is F. BOHM, WETTBEWERB UND MONOPOLKAMPF (1933).
n44 On the interdependencies between economic institutions ("Wirtschaftsverfassung") and
contract law see Bohm, Privatrechtsgesellschaft und Marktwirtschaft, 17 ORDO 75 (1966);
Mestmacker, Uber die normative Kraft privatrechtlicher Vertrage, 164 JURISTENZEITUNG
[JZ] 441; Uber das Verhaltnis des Rechts der Wettbewerbsbeschrankungen zum Privatrecht,
168 ARCHIV FUR DIE CIVILISTISCHE PRAXIS 235 (1968). For a critical appraisal of this
tradition see D. HART, ALLGEMEINE GESCHAFTSBEDINGUNGEN UND JUSTIZSYSTEM: ZUM
VERHALTNIS VON VERTRAGS- UND OKONOMIETHEORIE (1975).
n45 Some of the official documents stating the antitrust views of the present
administrations are now available in German: FORSCHUNGSINSTITUT FUR
WIRTSCHAFTSVERFASSUNG UND WETTBEWERB, NEUE ENTWICKLUNGEN DES
ANTITRUSTRECHTS ZU VERTIKALEN BESCHRANKUNGEN (1984) containing, among other
things, W. F. Baxter's letter of June 1982 to the Members of Congress on resale price
maintenance.
n46 The pertinent literature is again and again cited in many of the newer articles dealing
with vertical restraints. See, e.g., R. BORK, THE ANTITRUST PARADOX: A POLICY AT WAR
WITH ITSELF (1978); R. POSNER, ANTITRUST LAW: AN ECONOMIC PERSPECTIVE (1976).
The result reached by the Federal High Court comes close to a rule of per se legality (as
advocated in Posner, The Next Step in the Antitrust Treatment of Restricted Distribution:
Per Se Legality, 48 U. CHI. L. REV. 6 (1981)).
n47 See R. POSNER, supra note 46, at 171; Baker, The Supreme Court and the Per Se
Tying Rule: Cutting the Gordian Knot, 66 VA. L. REV. 1235 (1980). For a recent, more
cautious critique of the "traditional" objections to tie-ins see Easterbrook, Vertical
Arrangements and the Rule of Reason, 53 ANTITRUST L.J. 135, 159 (1984).
n48 One commentator has identified the theory of "group competition," as developed in B.
TIETZ, supra note 7, and by others, to be the conceptual basis of the Bundesgerichtshof's
reasoning. See Kohler, Individualwettbewerb und Gruppenwettbewerb, 146 ZEITSCHRIFT
FUR DAS GESAMTE HANDELSRECHT UND WIRTSCHAFTSRECHT 580 (1982). Tietz and his
supporters, however, do not conceive of some sophisticated notion of competition policy;
they develop and describe marketing strategies which are then defended and rationalized
vis-a-vis competition policy objections. In VW-Original-Ersatzteile-II these marketing
suggestions have been extensively argued by the defendants and these arguments have
convinced the Federal High Court.
n49 Rubin, The Theory of the Firm and the Structure of the Franchise Contract, 21 J.L. &
ECON. 223 (1978).
n50 The position of the automobile manufacturer is equivalent to that of a "franchisor" as
described by Rubin.
n51 See Marvel, Exclusive Dealing, 25 J.L. & ECON. 1, 6 (1982).
n52 See Rubin, supra note 49, at 233. A more recent econometic survey examining the
impact of state regulations on automobile franchising systems seems to support this theory
(see Smith, Franchise Regulation; An Economic Analysis of State Restrictions of Automobile
Distribution, 25 J.L. & ECON. 125 (1982)). According to this analysis, the legislative
protection which many American states granted dealers pursuant to the Automobile Dealers'
Day in Court Act of 1958 did not lead to a redistribution of profits from the manufacturer to
the dealer but rather caused price increases and new barriers to entry at the retail level,
thus making the consumer pay for the protection afforded to automobile. See also S.
MACAULAY, LAW AND THE BALANCE OF POWER: THE AUTOMOBILE MANUFACTURERS AND
THEIR DEALERS 180-88 (1966).
n53 Williamson, Assessing Vertical Market Restrictions: Antitrust Ramifications of the
Transaction Cost Approach, 127 U. PA. L. REV. 953, 993 (1979). Accord Goldberg, The Law
and Economics of Vertical Restrictions: A. Relational Perspective, 58 TEX. L. REV. 91, 11317, 129 (1979). In VW-Original-Ersatzteile-II the Williamson test would have required a
much closer scrutiny of Volkswagen's arguments than the Federal High Court deemed
necessary.
n54 For recent summaries and refinements of the "economics of governance," see
Williamson, Credible Commitments: Using Hostages to Support Exchange, 73 AM. ECON.
REV. 519 (1983); Williamson, The Economics of Governance: Framework and Implications,
140 ZEITSCHRIFT FUR DIE GESAMTE STAATSWISSENSCHAFT 195 (1984).
n55 Williamson, The Economics of Governance: Framework and Implications, supra note 54,
at 200.
n56 Note the short reference to franchising in Williamson, Credible Commitments; Using
Hostages to Support Exchange, supra note 54, at 529-30.
n57 Klein, Transaction Cost Determinents of "Unfair" Contractual Arrangements, 70 AM.
ECON, REV. 356 (1980).
n58 See supra notes 35-39.
n59 Goldberg does not subscribe to this laissez faire position. His objections, however, are
not based on a critique of the legalization of vertical restrictions but rather on a more
realistic assessment of the power resources of the actors concerned and on the dealers'
perceptions of legitimate rights (and the willingness of parties to use extrajudicial means for
pursuing them). Goldberg, supra note 53, at 122-25. 126.
n60 For a recent restatement in English of the "freedom-to-compete" approach by one of its
leading German exponents see Moschel, Antitrust and Economic Analysis of Law, 140
ZEITSCHRIFT FUR DIE GESAMTE STAATSWISSENSCHAFT 156 (1984).
n61 E. HOPPMANN, DAS KONZEPT DES VERTIKALEN PREISWETTBEWERBS: DARGESTELLT
AM BEISPIEL DER ARZNEIMITTEL MARKTE 15 (1978).
n62 H. HEIDRICH, KONSUMENTENWISSEN UND WETTBEWERB: DIE MARKTPROZESSE BEI
DAUERHAFTEN KONSUMGUTERN AM BEISPIEL NEUER UND GEBRAUCHTER
PERSONENKRAFTWAGEN 157, 288 (1981).
n63 R. KURZ & L. RALL, BEHINDERUNGSMISSBRAUCH 59, 73, 238 (1983).
n64 See supra note 40.
n65 See I. SCHMIDT, supra note 33, 57-67; J. SCHMITT, supra note 33, 41-45; C.
NEUMANN, ALLGEMEINE WETTBEWERBSTHEORIE UND PREISMISSBRAUCHSAUFSICHT: DAS
ORDD-DYNAMISCHE WETTBEWERBSKONZEPT UND PREISMISSBRAUCHSAUFSICHT NACH §
22 GWB UND ART. 86 EWG-VERTRAG, UNTER BESONDERER BERUCKSICHTIGUNG VON
FORTSCHRITTSLEISTUNGEN 138-65 (1984).
n66 See Carstensen, Vertical Restraints and the Schwinn Doctrine: Rules for the Creation
and Dissipation of Economic Power, 26 CASE W. RES. L. REV. 771 (1976).
n67 The historical roots of this concept are analyzed by Weick, Die Idee des Leitbildes und
die Typisierung im gegenwartigen Vertragsrecht, 31 NJW 11, 13-14 (1978). As early as
1906, the Reichsgericht declared a contractual agreement to be void because one party (in
that case the State) held a monopoly which it (mis-) used to impose unfair (immoral)
conditions on the other party. See judgment of Jan. 8, 1906, 62 Reichsgericht in Zivilsachen
[RGZ] 264, 266 (citing a judgment of Feb. 11, 1888, 20 RGZ 117).
n68 See supra note 67.
n69 P. ULMER, supra note 8, at 408-437.
n70 Id. at 246, 276-302, 340, 408, 431.
n71 §§ 675, 611 Civil Code. These sections deal with principal-agent relations
("Geschaftsbesorgungsverhaltnisse"); Ulmer's qualification of the agreement, therefore,
necessarily leads to a recognition of discretionary rights of the manufacturer.
n72 See supra text accompanying notes 21-32.
n73 It should be noted that the method, pointed out to the manufacturer by the Federal
High Court and Ulmer, of a notice of termination pending a change of contractual conditions
does in fact impose a duty on the parties to renegotiate their agreement and that this
bargining may or may not lead to a termination of the relation but will certainly include
some compensation of the dealer.
n74 See supra text accompanying notes 15-18.
n75 § 315.2 of the Civil Code.
n76 Kondgen & Konig, Grenzen zulassiger Konditionenanpassung beim Hypothekenkredit, 5
ZEITSCHRIFT FUR WIRTSCHAFTSRECHTS- UND INSOLVENZPRAXIS 129, 132 (1984).
n77 See M. WOLF, supra note 30.
n78 Id.
n79 Kondgen & Konig, supra note 76, at 134.
n80 See supar note 71.
n81 See supra text accompanying notes 60-66.
n82 See, e.g., Macneil, supra note 6.
n83 It is a phenomenon which speaks for itself when commentaries on AGBG § 9 abandon
the attempt to organize contract law according to legal concepts and simply present
alphabetic catalogues, consisting partly of contract types, partly general legal categories,
and partly individual contractual conditions.
n84 Macneil, Economic Analysis of Contractual Relations: Its Shortfalls and the Need for a
"Rich Classificatory Apparatus" 75 NW. U.L. REV. 1018 (1981).
n85 See Macneil, supra note 10, at 737-54; the same method is used in Macneil, supra note
6, at 340.
n86 I. MACNEIL, THE NEW SOCIAL CONTRACT: AN INQUIRY INTO MODERN CONTRACTUAL
RELATIONS 10 (1980).
n87 Macneil, supra note 84, at 1025-39.
n88 See, e.g., Butler & Baysinger, Vertical Restraints of Trade as Contractual Integration: A
Synthesis of Relational Contracting Theory, Transaction-Cost Economics, and Organization
Theory, 32 EMORY L.J. 1009 (1983); Goetz & Scott, Principles of Relational Contracts, 67
VA. L. REV. 1089 (1981); Goldberg, supra note 53.
n89 Macneil, Restatement (Second) of Contracts and Presentation, 60 VA. L. REV. 589
(1974).
n90 Macneil, A Primer of Contract Planning, 48 S. CAL. L. REV. 627, 656-66 (1975).
n91 See supra text accompanying notes 18-32.
n92 Macneil, Contracts: Adjustment of Long-Term Economic Relations Under Classical,
Neoclassical, and Relational Contract Law, 72 NW. U. L. REV. 854, 881-84 (1978).
n93 Macneil, supra note 92, at 892, 896.
n94 Macneil, supra note 6, at 367.
n95 Goldberg, supra note 53, at 123-25, showed that even economic considerations,
namely the logics of collective behavior, are capable of explaining these reactions. Goldberg
does not, however, feel obliged to revise his fundamentally liberal attitude towards vertical
restraints of competition. He does, however, recommend giving way to the demands of
contractual relations resulting from the changes in power structures: ("when vulnerability is
great . . . and the potential for exclusive conflict is high, the relationship should be subject
to extra-contractual review. . . .", id. at 123).
n96 Macneil, Efficient Breach of Contract: Circles in the Sky, 68 VA. L. REV. 947, 961
(1982).
n97 Macneil, supra note 84, at 1023-24.
n98 Id. at 1024.
n99 See Macneil, supra note 6, at 416-18.
n100 Id. at 416, n. 238.
n101 See supra text accompanying notes 84-95.
n102 See I. MACNEIL, supra note 86, at 64-70.
n103 See Macneil, supra note 6, at 346-47; Macneil, supra note 92, at 895 n. 125.
n104 The deliberations and theses sketched out above have been presented and discussed
at a symposium organized by the Center for European Legal Policy (ZERP) and Bremen
University Law School in March 1984; see WORKSHOP ZU KONZEPTEN DES POSTINTERVENTIONISTISCHEN RECHTS, ZERP-MATERIALIEN BD. 4 (G. Bruggemeier & C.
Joerges eds.) including Wietholter, Sozidswissenschaftliche Modelle im Wirtschaftsrecht
(p.2); Materialisierungen und Prozeduralisierungen von Recht (p.25), Gunther, Vorlaufige
Uberlegungen zu einer Theorie der Prozeduralen Applikation (p.74). See also Teubner,
Substantive and Reflexive Elements in Modern Law, 17 LAW & SOC'Y REV. 239, 243, 255
(1983).
n105 See Macneil, supra note 92, at 855 n.2.
n106 See W. WILHELM, ZUR JURISTISCHEN METHODENLEHRE IM 19. JAHRHUNDERT
(1958).
n107 See Kiefner, Der Einfluss Kants auf Theorie und Praxis des Zivilrechts im 19.
Jahrhundert, in PHILOSOPHIE UND RECHTSWISSENSCHAFT 3 (J. Bluhdorn & J. Ritter eds.
1969); Bluhdorn, "Kantianer" und Kant: Die Wende von der Rechts metaphysik zur
"Wissenschaft" vom positiven Recht, 90 SAVIGNY ZEITSCHRIFT (Romanistische Abetilung)
307 (1973).
n108 M. WEBER, WIRTSCHAFT UND GESELLSCHAFT 507-12 (J. Winckelmann ed. 5th ed.
1976).
n109 See Schmidt, Von der Privat-zur Sozialautonomie, 1980 JURISTENZEITUNG 153; Hart,
Zur konzeptionellen Entwicklung des Vertragsrechts, 29 DIE AKTIENGESELLSCHAFT 66
(1984) (an English version is published in UNFAIR CONTRACT TERMS IN CONSUMER
CONTRACTS, supra note 19).
n110 See Eder, Zur Rationalisierungsproblematik des modernen Rechts, in MAX WEBER UND
DIE RATIONALISIERUNG SOZIALEN HANDELNS, 157 (M. Sprondel & C. Seyfarth eds. 1981).
n111 See Tugendhat, Zur Entwicklung von moralischen Begrundungsstruckturen im
modernen Recht, in ARGUMENTATION UND RECHT 1 (W. Hassemer ed. 1980).
n112 See Wietholter, Entwicklung des Rechtsbegriffs, in V. GESSNER, RECHTSFORMEN DER
VERFLECHTUNG VON STAAT UND WIRTSCHAFT 38 (G. Winter ed. 1982).