Kozolchyk - Comparative commercial contracts: law, culture and economic development

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JESSE H. CHOPER

Professor of Law and Dean Emeritus,
University of California, Berkeley

JOSHUA DRESSLER

Professor of Law, Michael E. Moritz College of Law,
The Ohio State University

YALE KAMISAR

Professor of Law Emeritus, University of San Diego
Professor of Law Emeritus, University of Michigan

MARY KAY KANE

Professor of Law, Chancellor and Dean Emeritus,
University of California,
Hastings College of the Law

LARRY D. KRAMER

President, William and Flora Hewlett Foundation

JONATHAN R. MACEY

Professor of Law, Yale Law School

ARTHUR R. MILLER

University Professor, New York University
Formerly Bruce Bromley Professor of Law, Harvard University

GRANT S. NELSON

Professor of Law, Pepperdine University
Professor of Law Emeritus, University of California, Los Angeles

A. BENJAMIN SPENCER

Professor of Law, University of Virginia School of Law

JAMES J. WHITE

Professor of Law, University of Michigan

by

Boris Kozolchyk

Evo DeConcini, Professor of Law,
James E. Rogers College of Law, University of Arizona
Dr.H.c. Universidad Privada Antonio Guillermo Urrelo, Chiclayo, Peru,
Dr. H.c. The Universidad Mayor, Santiago, Chile
Permanent Professor Honoris Causa, Shanghai University of
International Business and Economics
Distinguished Visiting Professor of Law and Bailey Lecturer in Residence,
Louisiana State University Law Center
Profesor Distinguido, Universidad Carlos III Madrid, Spain
Profesor Distinguido Escuela Libre de Derecho, San Jose, Costa Rica
Former President of the International Academy of Commercial and Consumer Law

HORNBOOK SERIES

Mat #41508889

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ISBN: 978-0-314-28968-1

This book is dedicated to my loving wife Billie, children Abbie, Raphael, Shaun and grandchildren Sigal, Liana, Alex, Jacob and Ethan. It is also dedicated to my mentors Professors Hessel Yntema, Julius Stone and Adamson Hoebel, and to the United States of America, the country that brought us together and made this book possible.

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NATIONAL LAW CENTER FOR INTER-AMERICAN FREE
TRADE BOARD OF DIRECTORS

www.natlaw.com

Carol Colombo

Fedelta Partners, LLC, Phoenix, AZ

Blake T. Franklin

Latin America Investment Consulting, Santa Fe, NM

Dale Beck Furnish

Arizona State University, Tempe, AZ

Boris Kozolchyk

National Law Center for Inter-American Free Trade
University of Arizona, Tucson, AZ

D. Michael Mandig

Waterfall Economidis Caldwel
Handshaw Villamana, Tucson, AZ

James E. Nelson

Lindquist & Vennum PLLP, Denver, CO

Rodrigo Novoa

Aldivia, Contreras, Inalaf, Wrth & Verdugo
Abogados, Santiago, Chile

Mark Raven

Raven, Clancy & McDonagh, PC, Tucson, AZ

Philip A. Robbins, Esq.

Philip A. Robbins, PC, Phoenix, AZ

David Smallhouse

Miramar Ventures, LCC, Tucson, AZ

Lirain Urreiztieta

J.P. Morgan Chase Bank, NA, Tucson, AZ

Thomas R. Woods, Jr.

Neslen Woods & Dwyer, PLC, Phoenix, AZ

Juan Manuel Trujillo

Bingham McCutchen, New York, NY

HONORARY BOARD MEMBERS

James E. Rogers

Sunbelt Communications Co., Las Vegas, NV

Joel Valdez

University of Arizona, Tucson, AZ

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This magnificent new book draws on Professor Boris Kozolchyks theoretical and empirical studies over a period of many decades into the development of principles of contract and commercial law in a range of legal families and systems. Founder, President and Director of the National Law Center for Inter-American Free Trade in Tucson, Arizona, since its establishment some 22 years ago, he has brought his wealth of experience to bear on a comprehensive analysis of law as a tool for economic development. The scope of this work is astonishing both in its subject-matter and in the variety of sources on which it draws.

The impact of business practice on the development of commercial law is a topic of endless fascination both to commercial lawyers and jurisprudes. Even such a basic question as What converts business practice into law? is fraught with controversy and circular reasoning. This new work focuses on the opposing factors that motivate business practice: altruism and selfishness, co-operation and competition, brotherhood and adversarial behaviour. Interesting too is the contrast in some jurisdictions between commerce between fellow nationals and trading with foreigners. So we are told that in the Japan domestic market co-operation prevails over market freedom, while in the international market Japanese commercial activity is characterised by market competitiveness and low prices.

The span of this book is enormous. In time it ranges from the pre-commercial era, with its emphasis on community and family relationships rather than on contract, through Roman law, mediaeval law and the evolution of powerful guilds to the age of codification and the development of modern commercial law, noting the influence of the economic analysis of law. In space it traverses old and new legal systems in every legal family, covering a vast number of jurisdictions and of legal, economic and anthropological sources.

What has characterised Boris Kozolchyks writings from long ago is his focus on merchant motivation, on what makes the law work, on the concept of the bonus vir and the value added by altruism, and this is the thread that runs throughout this magisterial work of superb scholarship. This is essential reading for anyone seriously interested in the development of commercial law as an instrument of social and economic policy.

ROY GOODE
OXFORD

December 2013

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Officially, this book has been in the making during the 15 years or so that I have taught a course on comparative commercial law at the James E. Rogers College of Law, University of Arizona. My teaching of this course was encouraged by my colleagues David A. Gantz and former Associate Dean Kay Kavanagh; unofficially this book has been in the making during much of my lifetime.

As a young law student in Cuba during the Batista dictatorship, I kept asking myself if all the rule of law could do was to passively watch how bloody and costly violencealbeit periodically clothed in revolutionary garbwas destroying whatever was left of democracy and economic development in my country of birth.