Pub Date : 2021-06-22DOI: 10.1093/oso/9780192843654.003.0009
M. Hesselink
Chapter 9 presents the main conclusions from this inquiry and also offers a few wider concluding observations on justification, private law essentialism, normative pluralism, democratic compromise, and the limits of legal theory.
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Pub Date : 2021-06-22DOI: 10.1093/oso/9780192843654.003.0004
M. Hesselink
This chapter addresses the Europeanization of contract law from a normative perspective: can the Europeanization of contract law be justified? Or are there more convincing reasons why contract law should remain national or become global? Do we perhaps have a moral right to a European civil code? Or, conversely, are we entitled to make our contract law entirely national again? Should the integrity of national legal cultures be respected, or should a (re)nascent European legal culture be fostered? The chapter aims to provide a better explanation of why and how the question of the Europeanization of contract law has been so divisive and why neither the status quo, nor fully undoing the Europeanization of private law, nor indeed a move fast forward towards a European civil code, seem today to be alternatives commanding widespread support.
{"title":"National, European, or Global","authors":"M. Hesselink","doi":"10.1093/oso/9780192843654.003.0004","DOIUrl":"https://doi.org/10.1093/oso/9780192843654.003.0004","url":null,"abstract":"This chapter addresses the Europeanization of contract law from a normative perspective: can the Europeanization of contract law be justified? Or are there more convincing reasons why contract law should remain national or become global? Do we perhaps have a moral right to a European civil code? Or, conversely, are we entitled to make our contract law entirely national again? Should the integrity of national legal cultures be respected, or should a (re)nascent European legal culture be fostered? The chapter aims to provide a better explanation of why and how the question of the Europeanization of contract law has been so divisive and why neither the status quo, nor fully undoing the Europeanization of private law, nor indeed a move fast forward towards a European civil code, seem today to be alternatives commanding widespread support.","PeriodicalId":105562,"journal":{"name":"Justifying Contract in Europe","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128585516","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-22DOI: 10.1093/oso/9780192843654.003.0008
M. Hesselink
This Chapter focuses on a distinctive characteristic of an important portion of contemporary rules of contract law that sets them apart not only from public law but also from other branches of private law (e.g. property and family law), i.e. that these rules can be set aside freely by the contracting parties. Contrary to national civil codes, however, positive EU contract law does not include many instances of non-mandatory rules. This raises the question of what exactly justifies the existence of such optional rules: should public institutions be providing elaborate sets of contract law rules if private parties can set them aside as they please, and, if so, what kind of considerations should determine the content of such rules? Similar questions can be asked with respect to other instances of optional contract law, such as choice of law in cross-border contracts.
{"title":"Optionality","authors":"M. Hesselink","doi":"10.1093/oso/9780192843654.003.0008","DOIUrl":"https://doi.org/10.1093/oso/9780192843654.003.0008","url":null,"abstract":"This Chapter focuses on a distinctive characteristic of an important portion of contemporary rules of contract law that sets them apart not only from public law but also from other branches of private law (e.g. property and family law), i.e. that these rules can be set aside freely by the contracting parties. Contrary to national civil codes, however, positive EU contract law does not include many instances of non-mandatory rules. This raises the question of what exactly justifies the existence of such optional rules: should public institutions be providing elaborate sets of contract law rules if private parties can set them aside as they please, and, if so, what kind of considerations should determine the content of such rules? Similar questions can be asked with respect to other instances of optional contract law, such as choice of law in cross-border contracts.","PeriodicalId":105562,"journal":{"name":"Justifying Contract in Europe","volume":"79 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133088414","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-22DOI: 10.1093/oso/9780192843654.003.0003
M. Hesselink
This chapter concerns the relationship between contract law and democracy. The central question is whether contract law, in order to be legitimate, must have a democratic basis, and what this would entail. This leads to a normative institutional comparison between legislators, courts, legal academics, and economic-sectoral experts as the protagonists in contract law making. In addition, beyond the matter of institutional choice, the question of democratic legitimacy may lead to the question of whether there are any limits as to the kind of reasons (‘public reasons’) that can justify the law, in our case European contract law.
{"title":"Democratic Basis","authors":"M. Hesselink","doi":"10.1093/oso/9780192843654.003.0003","DOIUrl":"https://doi.org/10.1093/oso/9780192843654.003.0003","url":null,"abstract":"This chapter concerns the relationship between contract law and democracy. The central question is whether contract law, in order to be legitimate, must have a democratic basis, and what this would entail. This leads to a normative institutional comparison between legislators, courts, legal academics, and economic-sectoral experts as the protagonists in contract law making. In addition, beyond the matter of institutional choice, the question of democratic legitimacy may lead to the question of whether there are any limits as to the kind of reasons (‘public reasons’) that can justify the law, in our case European contract law.","PeriodicalId":105562,"journal":{"name":"Justifying Contract in Europe","volume":"67 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115530470","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-22DOI: 10.1093/oso/9780192843654.003.0006
M. Hesselink
This Chapter discusses the question of whether contract law can and should differentiate between different types of contracting parties according to their relational or social weakness. Should contract law protect certain weaker parties, through the implementation of measures ranging from general rules against unfair exploitation or abuse of circumstances to more specific sets of rules protecting certain categories of contracting parties, such as workers, tenants, and consumers? And if so, who should count as worthy of protection and what kinds of protection should they be granted? Given that consumer protection has been central to EU contract law, this question goes to the core of the justifiability of the European contract law acquis.
{"title":"Weaker Party Protection","authors":"M. Hesselink","doi":"10.1093/oso/9780192843654.003.0006","DOIUrl":"https://doi.org/10.1093/oso/9780192843654.003.0006","url":null,"abstract":"This Chapter discusses the question of whether contract law can and should differentiate between different types of contracting parties according to their relational or social weakness. Should contract law protect certain weaker parties, through the implementation of measures ranging from general rules against unfair exploitation or abuse of circumstances to more specific sets of rules protecting certain categories of contracting parties, such as workers, tenants, and consumers? And if so, who should count as worthy of protection and what kinds of protection should they be granted? Given that consumer protection has been central to EU contract law, this question goes to the core of the justifiability of the European contract law acquis.","PeriodicalId":105562,"journal":{"name":"Justifying Contract in Europe","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125099656","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-22DOI: 10.1093/oso/9780192843654.003.0005
M. Hesselink
This chapter is dedicated entirely to what may be regarded as the most fundamental political question of contract law, i.e. what justifies the legally binding force of contract law? What business do public institutions have in recognizing and enforcing private agreements? Could a society decide not to enforce contracts and still be sufficiently just? And if indeed a society ought to publicly recognize and enforce contracts, then which remedies should it make available? Leading contemporary political theories differ not only in the answers provided to this most fundamental political question of contract law but also in their respective understandings of the question, in particular on which aspects of it they consider particularly relevant.
{"title":"Binding Force and Remedies","authors":"M. Hesselink","doi":"10.1093/oso/9780192843654.003.0005","DOIUrl":"https://doi.org/10.1093/oso/9780192843654.003.0005","url":null,"abstract":"This chapter is dedicated entirely to what may be regarded as the most fundamental political question of contract law, i.e. what justifies the legally binding force of contract law? What business do public institutions have in recognizing and enforcing private agreements? Could a society decide not to enforce contracts and still be sufficiently just? And if indeed a society ought to publicly recognize and enforce contracts, then which remedies should it make available? Leading contemporary political theories differ not only in the answers provided to this most fundamental political question of contract law but also in their respective understandings of the question, in particular on which aspects of it they consider particularly relevant.","PeriodicalId":105562,"journal":{"name":"Justifying Contract in Europe","volume":"134 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116513360","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-22DOI: 10.1093/oso/9780192843654.003.0007
M. Hesselink
This chapter addresses the question of whether a society committed in principle to the legal recognition and enforcement of contracts is free, nevertheless—or even required—to withhold recognition and enforceability from certain contracts, by declaring them ‘null’ or ‘void’ under contract law doctrines such as ‘good morals’ or ‘public policy’, because of their unacceptable content, purpose, or consequences. This is the classical question of freedom of contract, which can be rephrased, to a large extent, in contemporary terms of ‘commodification’ and, for the European Union, as the question of the moral limits to the internal market.
{"title":"Public Policy and Good Morals","authors":"M. Hesselink","doi":"10.1093/oso/9780192843654.003.0007","DOIUrl":"https://doi.org/10.1093/oso/9780192843654.003.0007","url":null,"abstract":"This chapter addresses the question of whether a society committed in principle to the legal recognition and enforcement of contracts is free, nevertheless—or even required—to withhold recognition and enforceability from certain contracts, by declaring them ‘null’ or ‘void’ under contract law doctrines such as ‘good morals’ or ‘public policy’, because of their unacceptable content, purpose, or consequences. This is the classical question of freedom of contract, which can be rephrased, to a large extent, in contemporary terms of ‘commodification’ and, for the European Union, as the question of the moral limits to the internal market.","PeriodicalId":105562,"journal":{"name":"Justifying Contract in Europe","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130114696","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-22DOI: 10.1515/9783035620429-003
M. Hesselink
The chapter presents the states of play in the two debates which this book aims to bring together, i.e. European contract law and political philosophy, and is intended for those readers who are not familiar with these debates. The first section offers an introduction to the Europeanization of contract law. Its main purpose is to set the scene, as it were, without unduly framing the argument. Thus, it introduces the main milestones, players, acts, and controversies. The objective is to provide the reader with a general but concrete sense of what is meant by ‘European contract law’. The second section, similarly, provides a brief introduction to normative political philosophy. It sketches the main traits of some of the leading contemporary political theories, with a special focus on aspects relevant for (European) contract law. Finally, a third section further sets the scene by briefly presenting the various pluralities with which any contemporary theory of contract law is confronted, i.e. the variety of contract types that parties may conclude, the different systems of contract law existing in the Member States of the EU, and the various roles that contract law plays in our lives. The section concludes by briefly introducing the main stances one may adopt, as a law maker or as a theorist, towards these pluralities, i.e. monism, pluralism (constrained or unconstrained), and neutralism.
{"title":"Context","authors":"M. Hesselink","doi":"10.1515/9783035620429-003","DOIUrl":"https://doi.org/10.1515/9783035620429-003","url":null,"abstract":"The chapter presents the states of play in the two debates which this book aims to bring together, i.e. European contract law and political philosophy, and is intended for those readers who are not familiar with these debates. The first section offers an introduction to the Europeanization of contract law. Its main purpose is to set the scene, as it were, without unduly framing the argument. Thus, it introduces the main milestones, players, acts, and controversies. The objective is to provide the reader with a general but concrete sense of what is meant by ‘European contract law’. The second section, similarly, provides a brief introduction to normative political philosophy. It sketches the main traits of some of the leading contemporary political theories, with a special focus on aspects relevant for (European) contract law. Finally, a third section further sets the scene by briefly presenting the various pluralities with which any contemporary theory of contract law is confronted, i.e. the variety of contract types that parties may conclude, the different systems of contract law existing in the Member States of the EU, and the various roles that contract law plays in our lives. The section concludes by briefly introducing the main stances one may adopt, as a law maker or as a theorist, towards these pluralities, i.e. monism, pluralism (constrained or unconstrained), and neutralism.","PeriodicalId":105562,"journal":{"name":"Justifying Contract in Europe","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130848042","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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