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Behavioural Approaches to Contract and Tort: Relevance for Policymaking

Programme Director: Prof. Dr. P. Mascini

 

People think, decide, and act, and so do institutions and corporations (be it in a slightly more complex way). By thinking, deciding, and acting, we display behaviour, and in private law, behaviour is relevant in more than one respect.

 

At times, legislatures have preconceived ideas about behaviour and how private parties will respond to legislative intervention. For example, a legislature may enact specific legislation, submitting directors of corporations to fault-based liability in the event of insolvency of the corporation, assuming that this will give directors the incentive to take appropriate care in running the corporation's affairs. But will they do so in practice? Are there any behavioural side effects such as overzealous risk avoidance or an increase in directors’ salary demands?

Likewise, courts may entertain implicit or even explicit conceptions of behaviour. A court may consider that the owner of premises is under a duty of care to warn explicitly against dangers that are not readily noticeable to visitors. Applying such a rule, however, may need consideration of how individuals actually think about and perceive dangers, and even how they interpret warning signs.

In the research group ‘Behavioural approaches to contract and tort’, we conduct research into the thinking, deciding, and acting of individuals and groups with regard to the relationship with private law, notably the areas of contract, tort, property, corporate law, and civil procedure. We concentrate on issues of compliance and enforcement, and on individual and group behaviour.

Obviously, the methodology of our research efforts is interdisciplinary by nature. In our research team, we have legal scholars specialising in contracts, torts, property, and corporate law and civil procedure, as well as scholars specialised in law and economics, socio-legal studies, empirical legal studies, and psychology.

The research programme ‘Behavioural Approaches to Contract and Tort: Relevance for Policymaking’ (BACT) started in 2008. Professors Michael Faure and Willem van Boom jointly head the research programme. The programme was rated ‘excellent’ in the Dutch Research Assessment Exercise 2009 (average score 4.75 out of 5.0).

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