Fundamental Rights in European Contract Law

by Mak, Chantal

• ISBN13: 9789041126719
• ISBN10: 9041126716
• Format: Hardcover
• Copyright: 2008-02-20
• Publisher: Kluwer Law Intl

Summary

Our modern insistence on democratic social values has engendered an intense debate over the intersection of fundamental rights and contract law. In particular, case law in several European national jurisdictions has exerted significant pressure on traditional contract law instruments to conform more transparently with the fundamental rights enshrined in the EC Charter. This pressure is clearly evident in a number of societal areas subject to contract law, among them employment, housing, and privacy. It can even be argued, as this author does, that fundamental rights intermediate between politics and law. Taking its cue from many initiatives toward the development of a more coherent, even harmonised, European contract law, this book is the first major study to examine the following essential questions with detailed reference to actual judicial developments: To what extent do fundamental rights affect contract law? In which types of cases can fundamental rights be applied? What does the explicit consideration of fundamental rights add to contract law adjudication? The author approaches the analysis along two different avenues: first, a comparative overview of developments in case law, and second, a more general theoretical view on the interaction between fundamental rights and rules of contract law which is tested against examples from various legal systems. The focus throughout is on developments in case law, because the impact of fundamental rights in contract law has been felt on the level of dispute resolution rather than on the level of legislation. Germany and the Netherlands are chosen because their judiciaries have been notable for their early and continuing attention to the theme, and England and Italy for perspectives on developments under common law and civil law systems respectively. For its reframing of old questions and its insightful delimitations of new ones, this book offers a fresh and deeply informed new perspective on this important area of developing law. The discussion, moreover, has received an additional impulse from the debate leading up to the recent agreement on a Reform Treaty regarding the institutional settlement of the Union, which will give a legally binding status to the Nice Charter of Fundamental Rights. For these reasons and others, the book will be of great value to all interested parties in government, business, and legal practice.

Table of Contents

Acknowledgments	p. xiii
List of Abbreviations	p. xv
Introduction	p. xix
Fundamental Rights in European Contract Law - Developments in Case Law	p. 1
Introduction to Part I	p. 3
Freedom of Contract and Fundamental Rights	p. 5
Fundamental Rights	p. 6
Defining Fundamental Rights	p. 6
Germany	p. 9
Das Grundgesetz (Basic Law)	p. 9
The ECHR in German Law	p. 12
Das Bundesverfassungsgericht (Constitutional Court)	p. 14
The Netherlands	p. 15
De Grondwet (Constitution)	p. 15
The ECHR in Dutch Law	p. 17
No Judicial Review of Constitutionality	p. 17
Italy	p. 17
La Costituzione (Constitution)	p. 17
The ECHR in Italian Law	p. 20
La Corte costituzionale (Constitutional Court)	p. 22
England	p. 22
The Constitution	p. 22
The ECHR in English Law: The Human Rights Act 1998	p. 23
Preliminary Conclusion	p. 25
Freedom of Contract and the General Clauses of Private Law	p. 25
The Principle of Freedom of Contract and its Limits	p. 25
Limits Set by General Clauses of Private Law	p. 28
Good Morals	p. 29
Germany: 'Gute Sitten'	p. 29
The Netherlands: 'Goede Zeden' and 'Openbare Orde'	p. 30
Italy: 'Causa Illecita'	p. 31
England: 'Illegality' and 'Public Policy'	p. 32
Good Faith	p. 33
Germany: 'Treu und Glauben'	p. 34
The Netherlands: 'Goede Trouw'/'Redelijkheid en Billijkheid'	p. 35
Italy: 'Buona Fede'	p. 36
England: Good Faith?	p. 37
Tort	p. 38
Germany: 'Unerlaubte Handlung'	p. 38
The Netherlands: 'Onrechtmatige Daad'	p. 39
Italy: 'Fatto Illecito'	p. 41
England: Torts	p. 42
Freedom of Contract and Fundamental Rights	p. 42
Conclusion	p. 44
Interaction between Fundamental Rights and Contract Law	p. 45
Theories of Direct and Indirect Effect	p. 46
Direct Effect	p. 47
Indirect Effect	p. 49
Relativising the Direct/Indirect Effect Distinction	p. 50
Differentiation According to Legal Actors	p. 50
Differentiation According to Fundamental Rights	p. 52
Differentiation According to Legal Relationships	p. 53
A Theory of Relativity: Versions of Direct and Indirect Effect	p. 55
Germany	p. 57
Wechselwirkung	p. 57
A Landmark Decision: The Luth Case	p. 58
A Collision of Rights: The Wallraff Case	p. 61
(Pre-)Contractual Relations: The Betriebsschlosser Case	p. 64
Preliminary Conclusion	p. 69
Contractual Restrictions on Fundamental Rights	p. 70
The Handelsvertreter Case	p. 70
The Burgschaft Case	p. 75
Preliminary Conclusion	p. 82
The Netherlands	p. 83
Fundamental Rights and General Clauses	p. 83
'Good Morals' and Fundamental Rights: The Mensendieck Case	p. 83
Freedom of Expression and Tort: The Boycot Outspan Aksie Case	p. 86
Contract Law: The Maimonides Case	p. 88
Preliminary Conclusion	p. 91
Contractual Restrictions on Fundamental Rights	p. 92
Again: The Mensendieck Case	p. 92
The Kolkman/Cornelisse Case	p. 93
The HIV-test Cases	p. 96
Preliminary Conclusion	p. 103
Italy	p. 104
A Fundamental Right as a General Clause? The Case of Article 2 Cost.	p. 106
Effects of Fundamental Rights in Italian Private Law Cases	p. 107
Tort Law: 'New' Non-Pecuniary Damage	p. 107
Contract Law: Buona Fede in the Light of Fundamental Rights	p. 110
Preliminary Conclusion	p. 115
England	p. 119
Direct or Indirect Effect	p. 119
The HRA in Contract Law Adjudication	p. 125
Privacy under the HRA: Douglas v. Hello! Ltd and Other Cases	p. 125
Contract Law: Wilson v. First County Trust and Ghaidan v. Godin-Mendoza	p. 135
Preliminary Conclusion	p. 143
Conclusions on an Overview of Case Law	p. 145
A New Perspective on Effects of Fundamental Rights in Contract Law	p. 147
Cases of 'Direct' and 'Indirect' Effect	p. 148
Introduction	p. 148
Cases of 'Strong' Direct Effect	p. 149
Cases of 'Strong' Indirect Effect	p. 152
Cases of 'Weak' Indirect Effect	p. 154
Cases of 'Procedural Effect'	p. 155
Conclusion	p. 157
A New Perspective	p. 158
Introduction	p. 158
What the Distinction between Direct and Indirect Effects Does and Does not Explain	p. 158
To What Extent Do Fundamental Rights Affect Contract Law?	p. 160
In Which Types of Cases Can Fundamental Rights Be Applied?	p. 163
Plurality of Cases	p. 163
General Theories	p. 164
Limited Significance of the Distinction between Direct and Indirect Effects	p. 166
What Does the Explicit Consideration of Fundamental Rights Add to Contract Law Adjudication?	p. 167
Explicit Consideration of Fundamental Rights?	p. 168
Ex officio Intervention on the Basis of Fundamental Rights?	p. 170
Preliminary Conclusion	p. 171
Choosing a New Perspective: Freedom of Contract and Fundamental Rights between Autonomy and Solidarity	p. 172
Fundamental Rights or Policies?	p. 172
The Politics of European Contract Law	p. 174
Problematic Aspects of the New Perspective	p. 176
Fundamental Rights and the Political Stakes in Contract Law	p. 179
Conclusion	p. 181
Epilogue to Part I	p. 183
Tort Law Examples in a Contract Law Discourse	p. 184
Form and Substance	p. 185
Legal Certainty	p. 188
The Intermediary Role of Fundamental Rights in European Contract Law Adjudication	p. 191
Introduction to Part II	p. 193
Changing Perspectives: Starting Points for a Comparative Legal-Political Analysis	p. 195
An External Perspective on Fundamental Rights in Contract Law	p. 196
A Lion and a Fox...	p. 196
...And the Politics of European Contract Law	p. 197
Autonomy and Solidarity in European Contract Law	p. 200
Individualism and Altruism...	p. 200
...Or Autonomy and Solidarity	p. 201
Choice of Terminology	p. 206
An Impression of the Autonomy/Solidarity Continuum	p. 206
Gradations of Autonomy and Solidarity	p. 206
The 'Double Relativity' of the Continuum	p. 209
A Neutral Point on the Continuum	p. 212
Variations of the Continuum According to Jurisdictions	p. 213
A Model for the Analysis	p. 214
Conclusion	p. 214
Fundamental Rights and the Political Dimension of Contract Law	p. 215
Legislator, Parties and Judges	p. 216
Taking Rights and Critique Seriously	p. 218
Policies, Principles and Rights	p. 218
The Rights Thesis	p. 221
Coherence	p. 223
Effects of Fundamental Rights in Contract Law from a Dworkinian and a Kennedian Perspective	p. 225
Not Just a River in Egypt: Fundamental Rights and the Denial of the Political Stakes in Contract Law Adjudication	p. 226
Lost in Translation? Ideology and Judicial Behaviour	p. 226
A Fundamental Rights Hypothesis	p. 229
Testing the Fundamental Rights Hypothesis	p. 231
Institutional and Procedural Aspects	p. 232
Fundamental Rights and the Policies Involved in Contract Cases	p. 235
Non-Competition Clauses	p. 235
Policy Issues	p. 236
Cases	p. 237
Sureties by Relatives	p. 242
Policy Issues	p. 242
Cases	p. 242
Reduction of Contractual Penalties	p. 246
Policy Issues	p. 247
Cases	p. 247
Post-Contractual Duties in Doctor/Patient Relations	p. 254
Policy Issues	p. 254
Cases	p. 255
Surrogacy Arrangements	p. 258
Policy Issues	p. 261
Cases	p. 263
Contract Law Between Autonomy and Solidarity	p. 270
Introduction	p. 270
The Continuum Revisited	p. 271
General Remarks	p. 271
Case Solutions between Autonomy and Solidarity	p. 274
Shifting Limits to Freedom of Contract	p. 281
Varieties of 'Social Justice' in European Contract Law	p. 286
Conclusion	p. 289
What the Comparative Legal-Political Analysis Explains	p. 291
To What Extent do Fundamental Rights Affect Contract Law?	p. 292
Explaining the Politics of Direct and Indirect Effects	p. 293
The Legal-Political Perspective	p. 294
Autonomy and Solidarity	p. 295
Coherence and Legal Certainty	p. 298
In Which Types of Cases can Fundamental Rights Be Applied?	p. 299
Stronger and Weaker Parties in Contractual Relationships	p. 301
Validity of the Contract (Clause)	p. 302
Differentiation According to Legal Relationships, Fundamental Rights and Legal Actors	p. 303
What does the Explicit Consideration of Fundamental Rights Add to Contract Law Adjudication?	p. 305
Explicit Consideration of Fundamental Rights?	p. 306
Ex Officio Intervention on the Basis of Fundamental Rights?	p. 309
Conclusion	p. 310
Epilogue to Part II	p. 313
Dimensions of the Autonomy/Solidarity Continuum	p. 313
Social Justice in European Contract Law	p. 314
Institutional Imagination	p. 315
Summary and Conclusion	p. 319
Bibliography	p. 327
List of Cases	p. 355
Index	p. 361
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