What is a Modern Law of Contracts?

To be published in: Elgar Research Handbook on EU Consumer and Contract Law, Christian W. Twigg-Flessner (ed.)

In this paper it is argued that social justice plays a role in European contract law by discussing the role of contract law and social justice within the European Union.

European Review of Contract Law, 2006

The structure of the relationship between the individual and the community or the state is not definite at the European level. However this is a crucial point for the definition of the ground-rules in private law, considering, in particular, that European jurists normally ascribe to private law a constitutive role both in the functioning of the integrated market and in the construction of a European citizenship. In contract law the relationship between the individual and the community or the state is mainly designated by the definition of freedom of contract and its limits. On the scene of European law, however, the question of the limits of freedom of contract finds very different and contrasting solutions. This article identifies three different modes of approaching the question, which we have experienced and are currently experiencing in Europe; they are respectively described as the paternalistic, the social and the perfectionist model. Although recent developments in the harmonisation process show a propensity for a combination of the first and the third model, this paper argues that the social model still has a chance to achieve a key role in 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.

Louisiana Law Review, 2016

This contribution starts out with the fundamental changes society and law have undergone since 200 years ago with the 'discovery of consensus' and asks the question whether at the turn of our millennium, we are living similarly in a period of fundamental change. In this context, the contribution asks the question about the future of contract law. It does so primarily for Europe. To answer this question, it is argued that both institutionally and in substance contract law is indeed undergoing fundamental change, starting only a few decades ago. Contract law has become in its dynamic aspects largely European, decreasingly national, and will become over the next few decades, in substance, method and style, even primarily European. It has become a law in which party autonomy and instruments of order and protection have become similarly important and this process will continue. Standard contract terms, consumer protection, anti-discrimination are only three key elements; the financial crisis will trigger further thinking. The aim is to discover an equilibrium in which the material freedom of all parties concerned is best furthered. The article then argues that a trend towards codification comes together with a trend not to consider the code as 'universal order' any longer, that a trend towards generalisation comes together with a trend to differentiate more even in a general part of contract law: between different types of contract partners, different types of groups of contracts (spot contracts and long-term contracts), and different paradigms for the formation of contracts. The article concludes with an examination of some core areas where major steps of modernisation have been taken lately and it forecasts that contract law will be more international, interdisciplinary, more interested in the rule-setting process, more market and business oriented. In short it predicts that a similar discussion to that found within debates about corporate governance will develop for contract governance on a European level. Résumé: Cette contribution évoque tout d'abord les changements fondamentaux que la société et le droit ont connus depuis 200 ans avec la " découverte du consentement " et elle soulève la question de savoir si, au tournant de notre millénaire, nous sommes également en train de vivre une période de changement fondamental. Dans ce contexte, cette contribution soulève la question de l'avenir du droit des contrats. Elle le fait principalement par rapport à l'Europe. Pour répondre à cette question, il est soutenu qu'à la fois institutionnellement et substantiellement, le droit des contrats est effectivement en train de connaître un changement fondamental, qui a commencé seulement il y a quelques dizaines d'années. Le droit des contrats est devenu dans ses aspects dynamiques largement européen, de moins en moins national, et il deviendra même, dans les prochaines décennies, essentiellement européen en substance, méthode et style. Il est devenu un droit dans lequel l'autonomie de la volonté et les

2012

This essay aims to stress two main points. The first point: The general framework of European law (and specifically, contract law) is derived from Ordoliberalism doctrines. As a consequence, the Legislative plays a primary role in constructing the law: and so, European legal order is more a constructed order than a spontaneous order (with reference to F. Hayek ’s perspective). The second point: Within European contract law, parties’ private autonomy is assumed as a general principle, but the assumption is that party autonomy should be respected unless there a good reason to intervene; and often this reason does exist. If we consider specifically the Draft Common Frame of Reference, the main thing to note is the importance of general rules as good faith and reasonableness: the consequence is the centrality of judge’s power as to the construction of legal content of these rules. Nevertheless, here arises a specific problem: which is, and which should be, the right balance between the ...

European Review of Contract Law, 2013

Legal principles play an important role in any system of law. Following

Netherlands journal of legal philosophy, 2022

Even a small piece is a collective effort; thanks to Mirthe Jiwa, Marija Bartl and Niels Graaf for their helpful input and to the Amsterdam Centre for Transformative Private Law for organizing the symposium for which the contribution has been first conceived. Thanks also to Martijn W. Hesselink for his inspiring scholarly commitment and usual equanimity in engaging with questions and criticism. All errors and misconceptions are mine alone. 1 'The general research theme of our program is European contract law. We understand contract law here in a wide and functional sense, i.e., the law of economic transactions'-see CSECL annual report 2012, with thanks to Chantal Mak for sharing her copy. The definition was usually assumed to exclude family law-in hindsight a somewhat pernicious move-but include property, insolvency and company law, next to, it goes without saying, matters of torts and securitization-not to mention private international law. 2 Which may in fact, to connect to one theme in the book and in this issue, have ironically amounted to a form of hermeneutical injustice. 3 Martijn Hesselink has been Academic Director of CSECL almost throughout the Centre's existence (2006-2019). 4 Martijn W. Hesselink, Justifying Contract in Europe: Political Philosophies of European Contract Law

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...

European Law Journal, 2007

The World Trade Organisation (WTO) is currently in crisis after the dramatic collapse of the current round of multilateral trade negotiations: the Doha Development Round. Despite recent tentative statements by the US Trade Representative, Susan Schwab, that some progress is being made, it is difficult to know when or if talks will restart. On one level, the talks' failure can be attributed to members' inability to agree on appropriate percentage cuts in barriers to international agricultural trade. This is a linear conception, however, which sees the problem only through a 'trade lens', focusing as it does on the level of trade barriers and not the motivation for their imposition. In reality, the core difficulty is what should the legal relationship be between the liberalisation of international trade and broader non-trade concerns like the right to food? This is part of a much wider debate recognised by the editors of this book: the relationship between international trade and human rights. As the editors point out in the opening chapter, at an early stage this relationship was conceived as one of coexistence , where interaction between trade and human rights issues were marginal. Linkages were subsequently created initially by various trade embargoes instituted by the United Nations encouraging the use of trade measures to force an end to apartheid and other human rights abuses. The relationship has since become more complex as, for example, trade agreements adopt human rights obligations-for example the Doha Declaration on the Agreement on Trade Related Intellectual Property Rights (TRIPS) and Public Health-and human rights norms are recognised in trade dispute-settlement proceedings-for example to promote a right to health (Asbestos, 1 Hormones 2 and the recently released GMO 3 panel decision) or a right to preservation of the environment more generally (Shrimp/Turtle) 4. The editors therefore identify a complex symbiotic relationship between trade and human rights existing on five levels: the human rights and international trade relationship might be studied on a constitutional theoretical basis to indicate how its philosophical, cultural and legal foundations affect law at both an international and domestic level; jurisdictional overlap and cooperation between complementary and competing regimes/institutions reveals different problems; the place human rights obligations occupy in trade regulation, particularly the extent to which members are permitted to impose trade sanctions for human rights purposes; the reverse relationship also raises complications, that is what role trade norms should play, if any, in human rights regulatory mechanisms both in terms of their rules and their dispute-settlement proceedings; finally, whether private