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Party Autonomy, Distributive Justice and the Conclusion of Contracts in the DCFR

22 Pages Posted: 29 Jan 2009  

Horst Eidenmueller

University of Oxford; European Corporate Governance Institute (ECGI)

Date Written: January 29, 2009

Abstract

The rules on the conclusion of contracts are at the core of contract law. This article aims not only to describe these rules contained in Book II of the academic Draft Common Frame of Reference (DCFR) but also to illustrate the underlying values and policies. The DCFR severely restricts contractual freedom and pursues distributive aims. Unfortunately, it is certainly inefficient and often even impossible to achieve the latter goal through private law. The DCFR's provisions on non-discrimination, withdrawal rights as well as on contractual fairness in particular are critically examined against this background. These provisions address important problems, but they are not based on a convincing private law theory. The article suggests various improvements of the DCFR's rules to take party autonomy, and hence efficiency, more seriously.

Keywords: European Private Law, Draft Common Frame of Reference, European Civil Code

JEL Classification: K10, K12, K19, K33

Suggested Citation

Eidenmueller, Horst, Party Autonomy, Distributive Justice and the Conclusion of Contracts in the DCFR (January 29, 2009). Available at SSRN: https://ssrn.com/abstract=1334648 or http://dx.doi.org/10.2139/ssrn.1334648

Horst G. M. Eidenmueller (Contact Author)

University of Oxford ( email )

Mansfield Road
Oxford, Oxfordshire OX1 4AU
United Kingdom

European Corporate Governance Institute (ECGI) ( email )

c/o ECARES ULB CP 114
B-1050 Brussels
Belgium

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