Protection of the Weaker Party in European Contract Law: Standardized and Individual Inferiority in Multi-Level Private Law
European Review of Private Law, Vol. 18, pp. 729-756, 2010
Posted: 11 Aug 2010
Date Written: August 11, 2010
It is a permanent challenge to realize the freedom of contract objective effectively, rather than merely guaranteeing it formally. Indeed, nineteenth century private law already provided certain mechanisms to guarantee the protection of this ‘material’ freedom of contract. Meanwhile, a consensus has been reached on the need for a private law system that also provides real opportunities for self-determination. An example of this can be found in EU consumer law. Admittedly, this law is, for reasons of legal certainty, constrained both in personal and situational terms, and by certain formal requirements. However, the new rules against discrimination are dominated by approaches that focus strongly on the protection of the individual. They are supplemented by national provisions that in particular form a counterweight to certain individual weaknesses. The autonomy of national law in this field can be explained by the different traditions that underlie the ‘social’ contract law in the Member States. The differences are especially apparent in relation to public policy, the bona fide principle and the breach of an obligation before or at the time of contracting (culpa in contrahendo). They represent yet another argument against an undifferentiated leap from partial to full harmonization of contract law.
Keywords: Contract Law, Consumer Law, EU Harmonization, Law of Sureties, Transactions Involving Minors, the Mentally Disabled, or the Elderly, Anti-Discrimination Law
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