The Influence of Human Rights and Basic Rights in Private Law

The aim of this general report is to identify the role and the influence of human rights and basic rights in private law across different jurisdictions. It was prepared on the basis of the session ‘The influence of human rights and basic rights in private law’ at the XIXth International Congress of Comparative Law, organized by the IACL – International Association of Comparative Law, which took place between 20 and 26 July 2014 in Vienna, Austria. Nineteen national reports on countries from all over the world contributed to this end. This report aims to be international and is not solely limited to the influence of the human rights and basic rights in private law in Europe but also covers non-European and non-European Union jurisdictions. It focuses on the application and the influence of human rights and basic rights in private law, as reflected in case law and legislation. In doing so, several trends can be identified. The influence of human rights and basic rights in different spheres of private law exists, though it is limited and predominantly indirect in various fields of horizontal relationships. In particular, this is shown through the impact of human rights and basic rights on the interpretation of different private law concepts and legal rules, thereby affecting their content.

En Argentine, les droits fondamentaux de l’homme furent garantis par la Constitution de 1853 dans son chapitre premier, élargi par la réforme de 1994. D’ailleurs, cette réforme attribua valeur constitutionnelle aux conventions internationales sur les droits de l’homme dont le pays fait partie. Toutefois, le texte original de la Constitution admet la déclaration de l’état de siège en cas de commotion interne ou d’atteinte extérieure qui mettent en danger soit son exercice soit les autorités créées par elle ; les traités internationaux acceptent ces limitations.

D’ailleurs, la jurisprudence de la Cour Suprême de Justice et des tribunaux inférieurs, développèrent largement le champ d’application desdits droits. Notamment, la jurisprudence reconnut la protection de la vie privée sur la base de l’article 19 de la Constitution et sanctionna la violation du droit à l’intimité dans bien des cas. Moyennant l’application des articles 14 et 32 de la Constitution, on assigna à la liberté de la presse un sens élargi, consacrant la liberté d’expression pour tous les moyens de communication – cinéma, radio, télévision, internet, etc. – et la liberté de donner et de recevoir des informations, assurant ainsi l’équilibre entre la vie privée et la liberté d’expression et d’information. La Cour Suprême de Justice adopta la doctrine américaine de la malice avérée et harmonisa la protection de l’honneur avec le contrôle des actes de gouvernement par les citoyens. Le droit de propriété des choses et des droits d’auteur furent reconnus par la Constitution et les lois. La jurisprudence décida encore la primauté de l’intérêt supérieur de l’enfant.

It is needless to say that human rights play an important role in Austrian law. However, as in many other jurisdictions, there has long been uncertainty about the influence of human rights on private law. The article gives an overview on the subject matter from the perspective of Austrian law. The authors start with remarks on basic issues of human rights and then discuss their impact on various areas of private law (e.g. contract law, tort law, family law). By analysing the general principles of each field of law, they show that private law serves as a guardian of human rights.

In the Brazilian experience, the 1988 Constitution of the Republic enshrined as the fundamentals and objectives of the Republic the principles of the Dignity of the Human Person (Article 1, III of the Constitution), Social Solidarity (Article 3, III) and Substantial Equality (Article 3, I), as well as an impressive list of basic rights inserted unrestrictedly into the system as non-derogable individual guarantees (Article 5), to be constantly complemented by the internationally recognized human rights (Article 5, § 2), included as unamendable constitutional provisions (Article 60, § 4), hence unsusceptible to revocation by legislators or even by means of constitutional reform. In terms of the Brazilian Constitution, private economic initiative must be developed along with promotion of the dignity of the human person and social justice. It also prohibits private spaces, such as the family, firm or property, from constituting a redoubt unsusceptible to state control and propitious to infringement of the constitutional project. The Constitution of the Republic intervenes directly in economic relations, the family, labor relations, firms and consumer relations, in such a way that the internationally recognized basic and human rights also become directly binding in the legal relations of private law.

Protection of human rights is an important element of private law in the Czech Republic. Over the past few years, there has been a large recodification of private law in the Czech Republic. The core law of the Czech private law is the Act No 89/2012, i.e. the new Civil Code. In our paper, we explain that there are embodied many provisions whose purpose is to protect human rights in the new Civil Code. In some cases, the drafters of the new Civil Code were inspired by the European standards. However, there are areas which, in our opinion, should be amended so that the human rights would enjoy more protection. In our paper, we cover several areas of Czech private law and highlight some areas in which protection of human rights is reflected.

The protection of human rights and fundamental freedoms in Croatian private law is becoming increasingly expressed and important on a daily basis and it has a growing impact on the development of Croatian private law. Classical, traditional private law institutions are now being frequently interpreted in line with the high standards for the protection of human rights and fundamental freedoms. This trend has become particularly obvious in the past few years primarily because of modern tendencies in the organisation of private law relations where any elements of discrimination are eliminated, where the weaker parties are protected, and where this protection is generally being increased. At the same time, because of the ever-deepening financial crisis, particular protection of socially deprived parties to private law relations is required. The increased constitutionalisation of Croatian private law places new challenges every day on the Croatian legislator and on private law practitioners when it comes to the interpretation and application of the rules of contract law, tort law and property law. This is particularly important because of the intensive development of private law areas (Internet law, telecommunications law, environmental law, energy law) and because of the ever increasing impact of modern technologies on the development of private law which all require the constant redefinition of the content of human rights and fundamental freedoms and the adjustment of the methods for their protection in the light of these new trends. Such intensive development will probably call for a specific model for the protection of human rights and fundamental freedoms for particular private law areas because it will no longer be possible to apply general private law rules and base protection on the interpretation of constitutional declarations of human rights and fundamental freedoms.

Sous ce titre ambitieux de « rapport national », cet article est issu d’un rapport réalisé en vue du XIXème congrès de droit comparé qui se tiendra à Vienne en juillet 2014. L’objet était de recenser, à partir de questions précises, le rayonnement des droits de l’Homme et des droits fondamentaux sur le droit privé français. Il s’agissait d’être synthétique. Par conséquent, il était impossible d’être exhaustif. De plus, la forme était nécessairement imposée par la liste des questions. L’essentiel était de mettre l’accent sur les évolutions les plus saillantes et récentes. Il s’agissait également d’être le plus objectif possible, ce qui explique la neutralité du propos. La partie II a été rédigée par Geneviève Helleringer. Les parties I, III, IV, V et VI par Kiteri Garcia.

With the entry into force of the Grundgesetz, human and basic rights have significantly influenced the development of German private law in many important areas, such as contract, tort and family law. Often the impact of fundamental rights has led to remarkable changes in legislation. In contract law, for example, consumer protection has become an important principle and anti-discrimination laws were passed in accordance with several European legislative acts. Especially, the family law of the BGB has undergone many reforms with respect to the basic rights of the Grundgesetz. Furthermore, decisions by the European Court of Human Rights resulted in new laws strengthening the rights of the biological father.

Besides these legislatorial impacts, human and basic rights influence private law with their so-called indirect third (private) party effect. This institute allows and requires the courts to interpret and apply the law – especially by means of blanket clauses and vague legal concepts – with respect to the individual basic and human rights that are at stake. The constitutionally guaranteed right to privacy was therefore acknowledged as a right that is protected under the general clause of tort law (§ 823 BGB). Due to the third party effect, the courts also need to secure the parties’ freedom and equality rights by controlling contracts with the blanket clauses of unconscionability (§ 138 BGB) and good faith (§ 242 BGB).

This contribution aims to examine how Hungarian private law protects fundamental rights in private relations. The overview of the basic notions of rights protection in civil law will explain how far the universal idea of the rights of the individuals has developed in Hungary and how it relates to requirements indicated in the constitution, the Fundamental Law of Hungary. Hungary has just closed the codification procedure of a new Civil Code that entered into force on 15th March 2014. After the general introduction of the development of human rights and the controversies in the application of constitutional norms in private relations, according to the general scope of the research, I will focus on how certain main fields of private law already meet the required level of rights protection under domestic constitutional, European and international human rights standards. However, there are exceptions. Cases and controversies show that it is not always clear for judges how to interpret the applicable rule in order to meet abstract constitutional standards while staying in line with the text and the fundamental logic of private law. The study – according to the aims of the entire book – is primarily descriptive, it explains the basics of how human rights appear and apply in private law.

This chapter analyses the various strategies practiced by Italian courts for the protection of human rights and basic rights. Rather than reviewing the impact of the constitutionalisation of private law in separate branches such as tort, contract, family, inheritance, labour law, etc., the paper thus focuses on the judicial techniques of implementing fundamental rights in private law as a whole. After summarizing the main legislative reforms involving protection of human rights under the realm of private law, the following techniques are analysed: judgments of constitutional legitimacy, horizontal effects of fundamental rights, setting aside legislative provisions conflicting with fundamental rights, ‘judge makes law’ in the absence of legal provisions and, finally, indirect and direct application of fundamental rights to contractual freedom and clauses.

Au Japon, l’influence des droits de l’Homme n’est pas tout à fait visible. Dans le domaine du droit des obligations et du droit de la propriété, les règles de droit civil sont stables et les juges peuvent résoudre des problèmes en appliquant des règles déjà établies sans recourir à la notion des droits de l’Homme. Mais les droits de l’Homme influencent parfois l’interprétation de la notion telle que l’ordre public et l’intérêt juridiquement protégé. On peut donc percevoir des influences indirectes. Par contre, dans le domaine du droit de la famille, il y a eu une influence directe s’agissant de la part héréditaire de l’enfant naturel. En général, comme le législateur japonais, plutôt passif pour s’adapter aux changements sociaux dans le domaine du droit de la famille, intervient rarement, la doctrine et parfois les juges doivent avoir recours directement à la notion des droits de l’Homme pour protéger certaine catégorie des personnes.

In many European legal systems, fundamental rights enshrined in national constitutions and international and supranational human rights instruments tend to create strong magnetic fields across the entire body of law, including private law. In particular, this trend towards the constitutionalisation of private law can be observed in the Netherlands where fundamental rights contained in the Dutch Constitution (Grondwet) and the European Convention on Human Rights of 1950 (ECHR) become increasingly relevant for private law relationships. This contribution written as the Dutch report for the XIXth International Congress of Comparative Law 2014 focuses on the impact of fundamental rights on Dutch private law, with emphasis on contract law, tort law, and property law. The author argues in favour of the evolution of private law in the light of fundamental rights, rather than a constitutional revolution in private law. In her opinion, the Dutch experience in building a complementary relationship between fundamental rights and private law based on the idea of a dialogue between the two can provide some useful insights into how the constitutionalisation of private law could proceed in other national legal systems and in EU law.

Articles protecting human rights have been included in the Norwegian Constitution for 200 years and a comprehensive new chapter on human rights was added in 2014. Five international instruments on human rights have been given the status of national law. In contract law, rules protecting the weaker party may be seen from a human rights perspective and general rules on unfair terms protect a fundamental right to self-determination. The case law of the European Court of Human Rights has influenced Norwegian law to a significant extent in the balancing of the right to privacy and honour against the right to freedom of expression. Also the protection of property rights must be balanced against other fundamental rights, such as the right to housing; international case law has been influential here as well. Same-sex partnerships have been allowed from 1993 and same-sex marriages from 2008. International instruments on equal treatment and on the protection of the child have influenced national law. Controversial issues remain regarding protection of family life and protection of the child in relation to legislation on immigration. The right to privacy is crucial in the discussions on data protection, electronic surveillance etc.

This Chapter deals with the influence of Human Rights and Fundamental Rights in Portuguese Private Law. Human Rights are of utmost importance in Portuguese law and they are to be found in the Constitution of 1976 as well as in European and International texts. Human Rights have played a major role in different areas of private law. We have analysed its influence in contract law, tort law, property law, family law and intellectual property law. Portuguese Law follows the monistic paradigm and a correct interpretation of private law must include the catalogue of fundamental rights of our Constitution as well as the case law of the European Court of Human Rights.

This chapter provides an overview of fundamental rights and their influence in Slovenian private law. It was prepared as a general report for the Congress of the International Association of Comparative Law. It addresses the influence of fundamental rights in the law of obligations, property law and family law, and pays special attention to the right to privacy.

There is a weak system of fundamental rights in English common law which could be removed by the clear wording of a statute, but fundamental rights in the proper sense were first acquired when the European Convention on Human Rights was incorporated into English law by the Human Rights Act 1998. These rights cannot override statutes, but they do have a limited horizontal effect. This effect appears to be indirect and based on the public bodies bound by human rights under section 6 of the 1998 Act including courts and tribunals. This has, amongst other things, created a right of privacy, extended rights in tort and strengthened rights in family law. Besides this there are areas of ordinary law (case law and especially legislation) which create rights of the kind protected by fundamental rights systems (for example in equality law, consumer and inheritance rights, and law about availability of information). Some of this law emanates from the European Union.

International human rights and notions of basic rights have had little influence on private law in the United States. Constitutional rights in the United States are almost exclusively viewed in terms of the individual’s relationship with the State, not individuals’ relations with each other. At the same time, U.S. self-sufficiency and international power has allowed the United States to favor its parochial culture over international human rights discourse, a tendency further encouraged by legally and socially entrenched federalism. Virtually the only private law areas heavily influenced by notions of basic rights are anti-discrimination law and defamation, and both are easily distinguished exceptions in a country primarily focused on individual autonomy, parochial politics rather than international pressures, and federalism. Incorporation of international human rights and basic rights into U.S. private law will likely remain very limited for the foreseeable future, with the U.S. Supreme Court especially concerned with preserving private law as an area of State legislation.