The 'Social' Side of Contract Law and the New Principle of Regard and Fairness

Abstract

This paper submits that systematisation and integration of contract law in Europe must start on the level of principles and not with a mere comparison of national or EC rules. Customer protection is an expression of the general “principle of regard and fairness” which is in partial conflict with the other great principle of contract law: the principle of freedom on contract. Both principles are rooted in the catalogues of fundamental rights of most member states and the EU. The key question is how to limit these principles in cases of conflict: When is the pursuit and promotion of a party’s own interests still legitimate and how much regard for the interests of the other party can be demanded? The answers given to that question have a great impact on the functioning of markets and the shaping of our society in general. The limits of the principle of regard and fairness can be better ascertained by a distinction between the personal and the situational elements of protective provisions. These two elements operate in a flexible system and link the protective instrument to the danger to be averted by it. As long as a discussion about these fundamental questions is not initiated on a European level and does not lead to the development of a common basis, proposals for uniform contract law rules – like the (D)CFR – lack contact with the underlying values and political issues of contract law.

Keywords: European private law, contract law, European civil code, regard and fairness, social justice