ABSTRACT
‘Mud’ and ‘crystal’. These two adjectives, cleverly used by Pier Giuseppe Monateri, best reflected the difference between the common and civilian model of contracting. The ascendance of the general clause of contractual good faith is one of the characteristics of ‘muddy’ contracting. Today, the codification of such a general clause in almost all Latin American countries is confronted with the problem of judicial activism, i.e. the danger of a heteronomous reconstruction of contractual rules and agreements.
But while the mud contract prevails in legislation and legal doctrine, professional practice exalts the merits of the crystal contract. Thus, while the mud contract prevails in the laws and legal doctrine, professional practice exalts the merits of the crystal contract, as the true model capable of ensuring the firmness and execution of commitments, despite the interpretations imposed, and sometimes imagined, by the judiciary.
The purpose of this chapter is to describe the issues relating to the ‘mud vs crystal’ contract antithesis, and to set out the reasons why I predict the triumph of the crystal contract model. In addition, I will use Monateri’s classification as a prism through which it is possible and meaningful to identify, and warn about, the consequences of European legal and cultural dependence for Latin American countries.
