Private Law and Fundamental Rights: A Sceptical View

CONSTITUTIONALISATION OF PRIVATE LAW, T. Barkhuysen, S. Lindenbergh, eds., Leiden/Boston, pp. 9-22, 2006

8 Pages Posted: 6 Sep 2006 Last revised: 25 Aug 2008

See all articles by Jan M. Smits

Jan M. Smits

Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI)

Abstract

Over the last decade or so, many European countries have seen a growing influence of fundamental rights in contract, tort and property law. This development, sometimes referred to as the 'constitutionalisation' of private law, is often regarded as highly beneficial. It seems after all to be a noble idea to allow fundamental rights to play a role in relationships between private persons. However, the application of universal standards of what is regarded as fair in the relationship between the State and the citizen to private parties can also be looked at with suspicion. The aim of this contribution is to reflect on the desirableness of the constitutionalisation of private law and to show the adverse effects of this development.

Keywords: private law, fundamental rights

JEL Classification: K10

Suggested Citation

Smits, Jan M., Private Law and Fundamental Rights: A Sceptical View. Available at SSRN: https://ssrn.com/abstract=928560

Jan M. Smits (Contact Author)

Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) ( email )

P.O. Box 616
Maastricht, NL-6200 MD
Netherlands

HOME PAGE: http://www.jansmits.eu

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