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L'approche concurrentielle et contractuelle de la détermination du prix (dans les ventes commerciales et les contrats-cadre)

Abstract : The price must be determined and fair. Emergence of new forms of competition lead to decide in favour of a price fixed by the parties in a sum either certain or determinable in the contract of sale and an excessively objectivised definition of that price. This evolution also compelled contract right to discover "master agreements" or "contrats-cadre". Therefore, competition right is the driving force of contract right evolution. Concerning price amount, competition right sets limits to the contractual liberty of the parties and ensures free play of competition. But this right especially intends to promote price control by throwing contractual relations out of balance in favour of the buyer. For its part, contract right does not prohibit contracting parties from protecting themselves against an inflationist risk. The aim of price control followed by competition right is partly taken over by contract right. However, the lack of balance created between competitors must be reasonable. Failure of contract right and lacunas of competition, right in fixing a fair price are obvious. Contract right only viewed fair price indirectly. The judge must sanction unfair price by means of lesion. However, the cognisance of the judge still depends on the weak party. Only competition right can define what a fair price is and ensure an effective cognisance of competent authorities. Others than the weak party may bring an action but the cognisance of jurisdictions and of the Council on Competition remains too elitist. Moreover, combining prohibitions of abuse of the state of economic dependence and of discriminatory practices leads the judge to decree a partial price regulation for which he is not qualified. Only equality brings justice. Since one cannot trust much in economic concentrations' regulation, it belongs to weak parties to join together to become stronger.
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Submitted on : Tuesday, April 24, 2018 - 4:08:41 PM
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  • HAL Id : tel-01776932, version 1



Hélène Narayan-Fourment. L'approche concurrentielle et contractuelle de la détermination du prix (dans les ventes commerciales et les contrats-cadre). Droit. Université Nancy 2, 2002. Français. ⟨NNT : 2002NAN20012⟩. ⟨tel-01776932⟩



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