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Purnhagen, Kai:
Choice Architecture and Wilhelm Schapp's Contractual Theory : How Infrastructure and Suprastructure of Contracts Anticipated one of the most powerful modern concepts introduced by Richard Thaler and Cass Sunstein.
In: de Santis, Daniele ; Nuccilli, Daniele
(Hrsg.):
Phenomenology, Philosophy of Law and the Hermeneutics of Stories : Essays on the Thought of W. Schapp. -
Oxford
: Hart ; Bloomsbury
,
2023
Abstract
Choice architecture, defined as the impact that the deliberative design of the choice environment has on our decision, has been for many years at the forefront of innovative research of policy design. More recently, arguments from choice architecture are also entering contract law doctrine, as contracts are eventually also based on choice. Implementing insights from choice architecture, based on insights from behavioural economics, been viewed as a major innovation of the doctrine of contract law. This contribution will investigate whether, wittingly or unwittingly, these insights have been observed in a comparable manner much earlier in Wilhelm Schapp’s works on the superstructure and infrastructure of contracts. In this contribution I will illustrate how forward-looking Wilhelm Schapp’s works were if one compares them to nowadays concept of choice architecture in contract law. In this sense, I will argue, behavioural economics’ work on choice architecture form the very late empirical endorsement of Wilhelm Schapp’s theory of the superstructure and infrastructure of contracts. Seen from a different perspective, Wilhelm Schapp’s theory works as the theoretical foundations of nowaday’s concept of choice architecture and shall be used as such.