Social Justice In European Contract Law: A Manifesto (original) (raw)
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European Review of Contract Law, 2017
The recent reform of French law of contract consecrates and indeed reinforces those mechanisms designed to protect weaker parties that had been recognized progressively by the courts. This is not to say that the brief for contractual justice is now exhausted. Many questions have arisen that are not dealt with by the new legislation, but nor are they by the law of other Member States of the European Union, or indeed by the Common Frame of Reference. Three examples of contemporary problems that contract lawyers should address, are discussed here: access to vital goods and services to persons; the quality of goods and services provided under the contract; and the production process of these goods and services. On these three points, proposals are made which might serve as a basis for a new manifesto for social justice in European contract law. Résumé: La récente réforme du droit français des contrats consacre et même renforce les mécanismes de protection de la partie faible qui avaient été progressivement reconnus par la jurisprudence. Ce n'est pas à dire pour autant que l'agenda de la justice contractuelle soit désormais vide. De nombreuses questions sont apparues qui ne sont pas traitées par le nouveau droit français, mais pas non plus par les autres droits nationaux de l'Union européenne, ni par le projet de Cadre commun de référence. Trois exemples sont donnés de problèmes contemporains que les juristes de droit des contrats devraient à présent affronter: la question de l'accès aux biens et aux services essentiels pour la personne, celle de
International Scientific Journal “Internauka”. Series: “Juridical Sciences”, 2024
The article notes that in the context of the crisis phenomena occurring in the plane of national legal spaces, the problem of jurisdictional design of ‘access points’ as loci of sustainable development of human civilization is of paramount importance. The author believes that maintaining sustainable growth in ‘access points’ is possible if the basic model of commodification of goods is preserved. The author argues that under these conditions, the definition of moral boundaries in the commodification of goods is one of the main methodological issues that need to be resolved in forming the ‘New Private Law Theory’. The author is convinced that the process of commodification is, in principle, effective within the framework of taking into account the moral foundations of the relevant legal constructions. In this regard, the author refers to the origins of contract law, which developed in the Western legal tradition, and demonstrates that from the very beginning, despite the instrumentalist methodology aimed at justifying any imperatives – from utilitarianism to the ‘will of the ruling class – the fundamental categories of contract law are, based on moral considerations. The author supports his assumption with the conclusions drawn in the course of a brief analysis of (1) the grounds of contractual legal relations, (2) the determination of the legal meaning of such grounds, and (3) correspondence between the grounds of contractual legal relations and the utilitarian result expected by their parties. In the context of the tasks set, the author notes that the legal force of contracts based on the principle of ‘pacta sunt servanda’ (contracts must be fulfilled), as well as contracts based on ‘promise’, derives from an ethical convention that acquires a legal dimension within the relevant regulatory systems. In turn, the connection between the moral grounds of a contract (in their legal dimension) and the utilitarian result expected by the parties to a contract is established according to the commutative model – for German law and quasi-German legal orders, this is a synalagmatic construction of a contract, for the common law legal orders – promissory estoppel. In any case, in the event of a conflict between the utilitarian outcome expected by the parties to the contract and the moral foundations of society, the latter is resolved following the moral expectations of society for the good faith behavior of the parties to the contract. The attempt made in this paper to draw attention to the fact that all known legal constructions of contract law are based on moral provisions aims to overcome the one-sided view of private law constructions as ‘economic instruments based solely on utilitarian considerations. The further exploration of the influence of moral imperatives as the transcendental basis of the relevant legal constructions (without excluding the nature of private law as a sphere of legal reality that determines the democratic forms of existence of a society functioning based on the market), leads, in the author's view, to a change in the methodological basis of private law and clarifies the controversial provisions expressed by the initiators of the New Private Law Theory.
Towards a (Post)modern European Contract Law
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Legal Studies, 1998
The general theme of this conference - legal change and legal scholarship across Europe - reflects a growing interest of British academic lawyers in the increasing European dimension of law. Indeed, the new dynamics of the unification movement is one of the most salient features of the legal development of the recent past. It has many aspects, including EC legislation and the drafting of restatements and of general principles of law, which I will shed some light upon in the first part of my paper. I will then venture an explanation for the renascence and the new appeal of the unification movement (section II) before turning to a more specific discussion of the hamonisation of private law in Europe (section III), the significance of general principles of law for its unification (section IV), and the restatements of contract law and their role in the process of integration (section V). For the sake of clarity, I should like to premise that harmonisation and unification, although techn...
Principles and Rules in the Emerging European Contract Law
in (2013) 9 European Review of Contract Law, pp.
Legal principles play an important role in any system of law. Following the European Court of Justice, the treaties of the European Union have embraced the concept of "principles of law", mainly as a means to guarantee individual human rights in public and constitutional law. More recently, however, the ECJ has come to recognize as "general principles" private law and contract law norms and values. Furthermore, the notion of "principles" has played a key-role in impressive unificationb projects which aimed to promote convergence of national laws in Europe, such as the PECL ("Principles of European Contract Law") and the DCFR ("Draft Common Frame of Reference"). The proposed "Commen European Sales Law" (CESL) also opens with a separate chapter dedicated to "general principles" of contract law. The article invites the reader to think more carefully and critically about the role played by alleged "principles" in the law generally, and in the evolving European law of contract in particular. Part II points out the instability and vagueness of the concept of a legale "principle". Part III presents an original theoretical model which aims to reduce the inherent vagueness surrounding the concept and the distinction between legal rules and legal principles. The model suggests that while principles do often differ from tules in other respects as well (e.g., in their substantive content or analytical structure), these common distinctions fail to capture the most essential difference between pricniples and rules, which lies in their sharply distinct political function. Part IV applies this generale thesis to the multi-level constitutional architecture of European law, coming to the conclusion that the principles of European private law are those common core norms which are shared by the laws of most Meber States (ius commune europaeum). Part V applies and illustrates this claim on the various instruments by which the Union has attempted to promote the unification of contract law across Europe. Part VI concludes by claiming that the EUropean principles, including that ofsubsidiarity, are best understood as a balancing device by which the Union adjusts the level of regulation between legislature and cours on the one hand, and between the supranation and national powers on the others.