The Expanding Circle of Contract Law
Stellenbosch Law Review, 2016
Maastricht European Private Law Institute Working Paper No. 2016/03
17 Pages Posted: 2 Sep 2016 Last revised: 21 Sep 2016
Date Written: September 1, 2016
People and corporations are increasingly held liable in private law for the external effects of their actions, in particular in cases that involve some fundamental aspect of “justice” such as severe violations of labour standards or threats to the environment. These public interests are traditionally guarded by the state, but are now increasingly enforced by private individuals, in particular in cross-border situations where the injustice takes place in a “far-away” country. This contribution explores what is the potential of contract law in dealing with “private law justice across borders.” It asks whether the doctrine of privity of contract should be traded in for an approach that better takes the externalities of contracts into account. It is argued that current contract law is ill-suited to deal with this challenge and should adopt new techniques to expand the circle of people contract law seeks to protect.
Keywords: Contracts and third parties, Privity, Violability, Global justice, Corporate Social Responsibility, Foreign direct liability claims, Externalities, far-away countries
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