Party Autonomy, Distributive Justice and the Conclusion of Contracts in the DCFR
22 Pages Posted: 29 Jan 2009
Date Written: January 29, 2009
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: Suggested Citation