Exclusive contract law for data transmission (II)


Si Gyeongmin

Sep 03, 2021

Special theories tend to be instrumental rather than obligatory. In other words, their premise is that contract law should be designed to promote specific goals. Contract law usually plays a key role in facilitating mutually beneficial transactions, which cannot be concluded immediately because performance takes time or is difficult to verify. In this case, one party must take the risk of starting to fulfill its agreement or invest in reliance on the promise before it can ensure that the other party completes its performance. Knowing that commitments can be implemented can help mitigate this risk. The prospect of enforcement also encourages one party to make expensive investments to increase the value derived from the other party’s expected performance.

Therefore, the proposition that contract law should aim at promoting mutually beneficial transactions is highly consistent with the special theory of contract law. Under this approach, the appropriate rules for any particular market will vary based on factors such as the distribution of preferences among participants. The best rules to promote mutually beneficial transactions will also depend on the level of information barriers. At the same time, this method can also justify the adoption of special rules to regulate the personal data market.


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