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One of the hallmarks of the present era is the discourse surrounding Human Rights and the need for the law to recognise them. Various national and supranational human rights instruments have been developed and implemented in order to transition society away from atrocity and callousness toward a more just and inclusive future. In some countries this is done by means of an overarching constitution, while in others international conventions or ordinary legislation hold sway.

Contract law plays a pivotal role in this context. According to many, this is done through the much-debated ‘civilising mission’ of the contract, a notion which itself constitutes the canon of the Western liberal principle of ‘civilised economy’. The movement away from the belief in the absolute freedom of contract, which reached its zenith in the nineteenth century, to the principles of fairness and justice that underpin contract law today, is often deemed to be a testament to this civilising influence.

Delving into the interplay between human rights policies, constitutional law, and contract law from both theoretical and practical perspectives, this first volume of a two-book collection offers a totally new reappraisal of the subject by gathering a collection of essays written by contract law scholars from Europe, South Africa, Canada, and Australia. Instead of providing the reader with a sterile compilation of positivistic norms and policies on the impact of fundamental rights and constitutional law issues on contract law’s development, the authors build on their personal experience to analyse specific topics related to contracting that include a constitutional dimension. The book fills an important void in comparative law scholarship and in so doing represents the starting point for further debate on the subject.

Inhaltsverzeichnis

Frontmatter

The Impact of Human Rights on English Contract Law

Abstract
This chapter examines the influence of fundamental rights on English Contract law since the enactment of the Human Rights Act 1998. Its aims are twofold—to provide a first comprehensive analysis of this phenomenon in English law and to tease out the factors that have shaped its contours. The chapter accordingly explores each of the various routes by which fundamental rights may touch on English Contract law: direct statutory horizontality, public liability horizontality, remedial horizontality and substantive horizontality. It is shown that although all permutations of horizontality have featured in contract litigation before English courts, the actual influence of fundamental rights on Contract law has been slight. Indeed, the gap between Contract law and fundamental rights is so wide that the contractual origin of a right frequently features as a reason for not finding a rights violation. The causes uncovered are complex and impossible to reduce to a single factor. The analysis nevertheless opens up a fresh perspective on the constitutionalisation of Contract law: it is not so much a normative phenomenon universally furthering specific values as a particular legal technique the impact and value of which are decisively moulded by the local environment in which it operates.
François du Bois

Is All Fair in War Against Unhealthy and Unsustainable Lifestyles? The Right to Privacy vs. Modern Technology in Consumer Contracts

Abstract
In their quest to curb unhealthy and unsustainable consumer lifestyles, policymakers may be tempted to use modern technology to nudge consumers to conclude only the ‘right’ contracts. However, this would create a tension between individual consumers’ autonomy and their Fundamental rights, and public interests in safeguarding consumer welfare and environment. Rather than discussing restrictions of autonomy that may occur as a result of nudging, this chapter focuses on dangers to the protection of Fundamental rights in the regulation of consumer contracts in the food and textile industry sector. It considers to what extent the (European) legislators guarantee European consumers’ constitutional right to privacy in light of technological developments that could be used to nudge consumers to choose healthy and sustainable lifestyles. The right to privacy may become a victim of the fight for better consumer lifestyles, when policymakers and traders support the use of modern technology, without introducing a well-thought-out regulation thereof. This chapter argues that since modern technologies are constantly developing, policymakers should keep a close vigil over them and not be afraid to introduce rules that would ensure consumer data safety and security.
Joasia Luzak

The Influence of Constitutional Law on French Contract Law: The Development of the Control of Proportionality in Case of an Infringement of a Fundamental Right by Contract

Abstract
On account of the French legal system’s structure, it is rather difficult to measure the concrete influence of Constitutional law over contracts. After recalling the procedure before the Constitutional Council, the article shows that the Constitutional Council has little influence on the rules of law applicable to contracts. However, it considerably influences the judicial reasoning by inviting the judge to resort to a control of proportionality. Unknown by the judicial practice, this control is expected to become the key to litigation as regards the violation of Fundamental rights by contract (Sect. 2). After this overview, a case study will illustrate how the judicial judge still hesitates to implement this control of proportionality (Sect. 3).
Jean-Baptiste Seube

The Role of the General Principle of the Prohibition of Abuse of Rights in the Enforcement of Human Rights in Contract Law: A Belgian Law Perspective

Abstract
This chapter will determine and evaluate the role of the general principle prohibiting the abuse of rights in the enforcement of human rights in contractual relations, essentially from the angle of Belgian law. Whereas this principle has been created and developed in private law relations, the influence of international human rights has increased the importance of the discussed principle. It will be demonstrated on the basis of the Belgian case law that the criteria to find an abuse of rights constitute appropriate tools to enforce human rights in contractual relations (e.g., the right to non-discrimination, the right to human dignity or the right to privacy). As such, these criteria and the technique of judicial review, which are applied in private law relations, have been concretised or modulated in light of the proportionality test used in the protection of human rights in vertical relations.
Annekatrien Lenaerts

Crystal and Mud Contracts: The Theory of Contract and the Ontology of Values

Abstract
The aim of this chapter is to use the evolution of Italian law as an example of a typical Latin jurisdiction that passed through different ages, characterised by the adoption of different values, in order to understand the inherent ambiguity of the legal discourse on contract and values. The chapter will proceed toward a discussion of the nature of values in the context of the theory of Comparative law. The main conclusions will be (1) that there is not a pure form of contract and (2) that in order to cope with values we need to develop a theory of legal ontologies as the main target of Comparative law.
Pier Giuseppe Monateri

Decolonising South African Contract Law: An Argument for Synthesis

Abstract
South Africa is an example of a ‘mixed’ legal system. The fascinating synthesis of Roman-Dutch and English Contract laws is a key feature of this system and has often been remarked upon by scholars. The new frontier of debate in this country, however, is as to the role of the Constitution in shaping the Common law of contract and effecting transformation of our commercial landscape. The question in this regard of how to apply the Bill of Rights to the common law seems to have been settled at indirect horizontality. A related and pressing concern is how to incorporate indigenous African Customary law perspectives into the law of contract. All of these revisionist aims must, however, leave South Africa as a viable country in which to invest and do business. This paper was inspired by the 2015 ‘decolonisation’ movement and will explore ways in which to effect (in a commercially viable manner) the goal of decolonisation of Contract law, which is arguably mandated by the Constitution. In the light of this, one must ask, what is the future of South Africa’s traditional Roman-Dutch common law of contract?
Andrew Hutchison

Curbing the Abuse of a Dominant Position Through Unfair Contract Terms Legislation: Australian and UK Comparison

Abstract
The doctrines of freedom and sanctity of contracts have combined in Anglo-Australian law to enable dominant contracting parties to abuse their position by foisting unfair contract terms upon those with whom they deal. However, since the heyday of these doctrines in the late nineteenth century, the courts have gradually abridged this power using a variety of equitable and common law doctrines and principles. More recently, unencumbered by constitutional restrictions, parliaments in Australia and the UK have passed legislation specifically aimed at preventing such abuse by rendering ineffective unfair contract terms. This chapter examines this legislation and its justifications and following a comparative analysis makes some suggestions for reform.
Philip H. Clarke

The Influence of Constitutional Law in German Contract Law: Good Faith, Limited Party Autonomy in Labour Law and Control of Contractual Terms

Abstract
In German law, an influence of Fundamental rights in Contract law has been recognised since the mid-1950s. How this influence was effected and whether it was a direct or indirect effect was discussed for approximately 30 years. The prevailing approach today, in both court practice and academia, is that the effect is an indirect one. Only under the scope of Article 9 III Grundgesetz is the effect in Contract law a direct one. Some legal academics also mention the State’s duty of protection in relation to the Fundamental rights. The aim of this article is to review the influence of Fundamental rights in German Contract law. The different dogmatic approaches discussed over the years and their respective development will be reviewed and contrasted with the current situation. Various examples will be used to illustrate the types of cases where the influence of Fundamental rights becomes particularly relevant. These examples include good faith, the control of contractual terms and limited party autonomy in Labour law. These will be substantiated with examples from court practice.
Béatrice Schütte

Agreements on Personality Rights in the Portuguese Legal System

Abstract
The rules and principles enshrined in the Portuguese Constitution are binding. The country’s Civil law, and specifically the Contract law, must therefore be in accordance with it. However, the way that private individuals shall be bound by these constitutional rules and principles has been under discussion.
In the Portuguese legal system, agreements on personality rights are possible if in accordance with the law. The subject matter of these contracts, mostly governed by the Civil law, concerns personality rights, such as the right to one’s image. And the legal interests subject to personality rights are also the subject of Fundamental rights enshrined in the Constitution. It follows, perforce, that it is necessary to define how the Constitutional law has an impact on these matters in the Civil law.
Elsa Dias Oliveira

The Constitutional Aspect of Canadian Contract Law

Abstract
Constitutions are generally viewed as foundational to other disciplines, especially when they are written and entrenched as in Canada. This ‘top-down’ perspective provides a partial and arguably fragmented view of Canadian Contract law. The reason is that it does not explain the relationship between the Common law and the Constitution and their reciprocal dynamics. At Common law, the unwritten law is understood as ‘foundational’ to statute and written law. The problem that arises in Canada is that there does not appear to be a uniform ‘general law’ that is truly national. Section 92(13) of the Constitution Act, 1867, confers jurisdiction over ‘property and civil rights’ to provincial legislatures. As a result, Canadian Contract law could be viewed as divided territorially. This view is difficult to sustain in that Canadian unwritten law cannot be a mere transposition of the Common law rules that are otherwise associated with provincial jurisdiction. The alternate question asks to what extent the Canadian Constitution presupposes ius commune, i.e. a reservoir of unwritten legal concepts that underlie the Constitution itself. From this perspective, it is not the Constitution that creates Contract law but rather private contractualism that becomes a backbone of the written document. This essay proposes to examine this proposition by providing a reinterpretation of constitutional jurisprudence related to contracts in both of Canada’s Constitution Act, 1867, and the Constitution Act, 1982.
Nicolas Lambert

Reflections on the Pactum in the Public and Private Spheres

Abstract
This chapter delves into the nature of the pactum as both substantial and functional bond, as well as mythical canon of any contractual-constituting initiative in the public and private spheres. The aim is to show that the movement toward the conceptualisation of good faith as an organising principle and implied term in the Common law tradition is due to the need to counterbalance our inhuman condition as made manifest by the humanitarian façade of the modern constitutional project. This claim is supported by an unconventional method of investigation that will promote the comparison between the role of political action at the public level and the increasing utilisation of the doctrine of good faith in Contract law theory and practice.
Luca Siliquini-Cinelli
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