THE TENSION BETWEEN THE REAL AND THE PAPER DEAL CONCERNING “NO ORAL MODIFICATION” CLAUSES

Abstract

AbstractThis article proposes a new model for the regulation of no oral modification (NOM) clauses. First, the article seeks to offer a deeper understanding of the wishes of the parties in contracts from the perspective of parties' autonomy, distinguishing between intentions focused on the legal relationships and those focused on extra-contractual relations. Second, we explain how enforcement of NOM clauses may influence the parties' relations. Third, the article includes an economic analysis clarifying the roles of efficiency and institutional considerations in the NOM phenomenon. Applying the results of our analysis, we propose a comprehensive model for regulating NOM clauses. The key innovation of the model is context-dependent regulation differentiating among sophisticated and equally powerful parties, unsophisticated parties of equal power, and relationships with power disparities. Our model also offers an auxiliary test to help distinguish between parties' legal relationships and their extra-contractual relations.