Harmonising Effects of Fundamental Rights in European Contract Law

21 Pages Posted: 31 Oct 2007

See all articles by Chantal Mak

Chantal Mak

University of Amsterdam - Centre for the Study of European Contract Law (CSECL); University of Amsterdam - Faculty of Law

Abstract

This paper addresses the question of whether and how the application of fundamental rights in national contract law cases may facilitate the harmonisation of contract law within the European Union. Presenting examples from Dutch, German, English and Italian case law, it is argued that fundamental rights bridge the gap between public policy and private interests. This point of view is based on the idea that these rights, on the one hand, are enacted rules of the legal system, which may be invoked to enforce the protection of the interests they represent. On the other hand, however, they represent the views of society on values that are so fundamental that they should be guaranteed on all levels of public as well as private law. The application of fundamental rights in contract cases can thus bring to the fore policy issues that in traditional contract law reasoning remain under the surface, while at the same time it connects policy choices to specific rule-solutions. In a comparison between the selected legal systems, it then appears that similar policy issues underlie similar problems in the different countries (e.g. in cases concerning surrogate motherhood or suretyships by relatives). In particular, these cases deal with the question of striking the balance between self-reliance and protection of contract parties. The application of fundamental rights in such cases could stimulate harmonisation in two interrelated ways: firstly, the application of domestic as well as international fundamental rights could make judges more aware of the policy issues addressed in case law and induce them to align their case solutions with the standards set by these rights; secondly, the application of fundamental rights could have a harmonising effect insofar as these rights direct the national courts to certain case solutions in contract law.

Suggested Citation

Mak, Chantal, Harmonising Effects of Fundamental Rights in European Contract Law. Erasmus Law Review, Vol. 1, No. 1, 2007, Available at SSRN: https://ssrn.com/abstract=1026217

Chantal Mak (Contact Author)

University of Amsterdam - Centre for the Study of European Contract Law (CSECL) ( email )

P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

University of Amsterdam - Faculty of Law ( email )

Amsterdam, 1018 WB
Netherlands

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