Unfair Advantage: An Intriguing Example of Legal Transformation in the Swiss Private Law

This paper demonstrates a mixed approach to the theme of the instrumentality of law by both analysing the goal of a legal transformation and the techniques adapted to achieve it. The correct recognition of a certain practical necessity has lead the Swiss Federal Tribunal to an intriguing judgement “Fussballclub Lohn-Fall” of 1997. The legal remedies provided for cases of unfair advantage have been then creatively modified praeter legem. The adaptation was strongly influenced by foreign legal patterns. The Swiss Code of Obligations of 1911 provides a norm in art. 21 on unfair advantage (unconscionable contract), prescribing that if one party takes unjustified advantage over the weaknesses of another in order to receive an excessive benefit, such a contract is avoidable. Its wording has been shaped over a hundred years ago and still remains intact. However, over the course of the 20th century the necessity for a more efficient protection has arisen. The legal doctrine and jurisprudence were constantly pointing out the incompleteness of the remedies provided by art. 21 of the Code of Obligations. In the “Fussballclub Lohn-Fall” (BGE 123 III 292) the Swiss Federal Tribunal finally introduced the possibility to modify the contract. Its decision has been described as “a sign of the zeitgeist, spirit of the time”. It was the Swiss legal doctrine that has imposed the new measure under the influence of the German “quantitative Teilnichtigkeit” (quantitative partial nullity). The historical heritage of the Roman laesio enormis has also played its role.

Torn between state and market: Private policy implementation and conflicting institutional logics

Policy implementation by private actors constitutes a “missing link” for understanding the implications of private governance. This paper proposes and assesses an institutional logics framework that combines a top-down, policy design approach with a bottom-up, implementation perspective on discretion. We argue that the conflicting institutional logics of the state and the market, in combination with differing degrees of goal ambiguity, accountability and hybridity play a crucial role for output performance. These arguments are analyzed based on a secondary analysis of seven case studies of private and hybrid policy implementation in diverging contexts. We find that aligning private output performance with public interests is at least partly a question of policy design congruence: private implementing actors tend to perform deficiently when the conflicting logics of the state and the market combine with weak accountability mechanisms.

The private sector, the public sector, and donor assistance in economic development : an interpretive essay /

"PN-AAL-007"--Cover.

A comparative analysis of policies and other factors which affect the role of the private sector in economic development /

"PN-AAL-031"--Cover.

Costa Rica private sector study /

"PN-AAL-005"--Cover.

Minorities and women in private industry, 1975 : an analysis of EEO-1 employment /

Includes bibliographical references.

Taylor's sacred minstrel, or, American church music book : a new collection of psalm and hymn tunes adapted to the various metres now in use : together with anthems, sentences, chants and other pieces : for the use of choirs, congregations, singing schools, musical societies, social sacred music circles, and private devotion ... /

Mode of access: Internet.

Economic growth and the third world : a report on the AID Private Enterprise Initiative.

"April 1987."