Non-Mandatory Rules in European Contract Law

Abstract:     
This paper examines whether the European Union should enact one or more sets of non-mandatory rules of contract law. In order to be able to answer this question, it examines several perspectives on non-mandatory rules and concludes that there is no decisive, merely "technical" answer; the question is political. The paper further shows that, in spite of the principle of freedom of contract, many "non-mandatory rules" are de facto mandatory. This leads to the conclusion that, in this respect, there is no categorical difference between mandatory rules and non-mandatory rules. The consequence is, on the one hand, that there is no reason to exclude non-mandatory rules as a category from unification efforts with regard to contract law, whereas, on the other, a political process is necessary with regard to non-mandatory rules which assures that the important political choices are made in a democratic way.

Keywords: Default Rules, Mandatory Rules, Contract Law, European Law

JEL Classifications: K12

Accepted Paper Series