Non-Mandatory Rules in European Contract Law
Martijn W. Hesselink
University of Amsterdam - Centre for the Study of European Contract Law (CSECL)
European Review of Contract Law, Vol. 1, pp. 43-84, 2005
INHOUD EN WERKING VAN DE OVEREENKOMST NAAR BELGISCH EN NEDERLANDS RECHT, Jan Smits & Sophie Stijns, eds., pp. 101-134, Antwerpen & Groningen: Intersentia, 2005
PRO FORMA? ESSAYS ON THE ROLE OF FORMAL RULES AND FORMAL REQUIREMENTS IN PRIVATE LAW, A.F. Salomons & G.J.P. de Vries, eds., pp. 139-174, The Hague: Boom Juridische uitgevers, 2006
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.
Number of Pages in PDF File: 43
Keywords: Default Rules, Mandatory Rules, Contract Law, European Law
JEL Classification: K12Accepted Paper Series
Date posted: April 4, 2005 ; Last revised: April 8, 2011
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