From «antagonistic» to «empatich»: the 'long-term contracts' continuum and the role of the Unidroit principles.

The paper addresses what value should be given to the parties’ silence on the allocation of risk within long-term contracts. The common law tradition adopts the doctrine of absolute contracts, according to which, in case of unforeseen contingencies, the promisor’s performance is neither excused nor adjusted, thereby conceiving long-term contracts as self-sufficient instruments. This strand of thought fits the so-called «antagonistic contracts», in which the parties aim at allocating all possible risks ex ante. On the other hand, pursuant to several civil law systems and the UNIDROIT principles, parties’ silence on a certain contingency is interpreted as their intent to share the risk, thus intending a long-term contract as a flexible framework. Said approach suits the so-called «empathic contracts», which aim at adapting to contingencies through an ex post loss distribution. On the assumption of this dichotomy, the essay submits that among English law and the civil law no approach is superior to the other but, in the absence of ad hoc remedies, it becomes essential for the parties to choose the correct governing law depending on the «antagonistic» or «empathic» nature of the contract.