Derecho Contractual Europeo, Autonomía Privada Y Poderes Del Juez Sobre El Contrato (European Contract Law, Freedom of Contract, and the Role of Judge)
Revista de Derecho Privado No. 22, 2012
13 Pages Posted: 4 Jul 2012
Date Written: 2012
This essay aims to stress two main points. The first point: The general framework of European law (and specifically, contract law) is derived from Ordoliberalism doctrines. As a consequence, the Legislative plays a primary role in constructing the law: and so, European legal order is more a constructed order than a spontaneous order (with reference to F. Hayek ’s perspective). The second point: Within European contract law, parties’ private autonomy is assumed as a general principle, but the assumption is that party autonomy should be respected unless there a good reason to intervene; and often this reason does exist. If we consider specifically the Draft Common Frame of Reference, the main thing to note is the importance of general rules as good faith and reasonableness: the consequence is the centrality of judge’s power as to the construction of legal content of these rules. Nevertheless, here arises a specific problem: which is, and which should be, the right balance between the role of the European law (and its constitutional values) and the role of the judge with reference to general rules? Along the path of Ordoliberalism, judge’s powers are going to be restricted in front of the enlarging power of legislation, in order to pursue contractual justice?
Note: Downloadable document is in Spanish.
Keywords: freedom of contract, market, European contract law, judge
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