Abstract

MONROY OELY, DANIEL ALEJANDRO. Default Rules in the Law: Toward a Theoretical Framework. Rev. Derecho Privado [online]. 2021, n.40, pp.87-118.  Epub Feb 08, 2021. ISSN 0123-4366.  https://doi.org/10.18601/01234366.n40.04.

Default rules are ubiquitous structures in multiple areas of law. Whereas these types of rules have been studied in contract law, beyond this area, default rules have not attracted much interest from civil law doctrine. Although this doctrine has repeatedly held that default rules preserve per se a continuum in the freedom of choice of their addressees, this paper contests this thesis and argues that these rules produce a deep but unnoticed impact on autonomy and individual freedom of choice. In this order, the paper reflects about why in certain areas of law and why certain contents of the default rules can be qualified as ethically inadmissible. The paper also suggests some preliminary criteria to determine "how" the content of the default rules should be designed.

Keywords : default rules; active choice; civil law doctrine; individual autonomy; freedom of choice.

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