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

22 Pages Posted: 29 Jan 2009

See all articles by Horst Eidenmueller

Horst Eidenmueller

University of Oxford - Faculty of Law; European Corporate Governance Institute (ECGI)

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

Eidenmueller, Horst G. M., Party Autonomy, Distributive Justice and the Conclusion of Contracts in the DCFR (January 29, 2009). Available at SSRN: or

Horst G. M. Eidenmueller (Contact Author)

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

European Corporate Governance Institute (ECGI) ( email )

c/o the Royal Academies of Belgium
Rue Ducale 1 Hertogsstraat
1000 Brussels

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