Our modern insistence on democratic social values has engendered an
intense debate over the intersection of fundamental rights and contract law.
In particular, case law in several European national jurisdictions has exerted
significant pressure on traditional contract law instruments to conform more
transparently with the fundamental rights enshrined in the EC Charter. This
pressure is clearly evident in a number of societal areas subject to contract
law, among them employment, housing, and privacy. It can even be argued, as
this author does, that fundamental rights intermediate between politics and
Taking its cue from many initiatives toward the development of a more
coherent, even harmonised, European contract law, this book is the first major
study to examine the following essential questions with detailed reference to
actual judicial developments:
• To what extent do fundamental rights affect contract law?
• In which types of cases can fundamental rights be applied?
• What does the explicit consideration of fundamental rights add to contract
The author approaches the analysis along two different avenues: first, a
comparative overview of developments in case law, and second, a more general
theoretical view on the interaction between fundamental rights and rules of
contract law which is tested against examples from various legal systems. The
focus throughout is on developments in case law, because the impact of
fundamental rights in contract law has been felt on the level of dispute
resolution rather than on the level of legislation. Germany and the
Netherlands are chosen because their judiciaries have been notable for their
early and continuing attention to the theme, and England and Italy for
perspectives on developments under common law and civil law systems
For its reframing of old questions and its insightful delimitations of new
ones, this book offers a fresh and deeply informed new perspective on this
important area of developing law. The discussion, moreover, has received an
additional impulse from the debate leading up to the recent agreement on a
Reform Treaty regarding the institutional settlement of the Union, which will
give a legally binding status to the Nice Charter of Fundamental Rights. For
these reasons and others, the book will be of great value to all interested
parties in government, business, and legal practice.
Part I: Fundamental Rights
in European Contract Law. Developments in Case Law. Introduction to Part
I. 1. Freedom of Contract and Fundamental Rights. 2. Interaction
between Fundamental Rights and Contract Law. 3. A New Perspective on
Effects of Fundamental Rights in Contract Law. Epilogue to Part I.
Part II: The
Intermediary Role of Fundamental Rights in European Contract Law
Adjudication. Introduction to Part II. 4. Changing Perspectives:
Starting Points for a Comparative Legal-Political Analysis. 5.
Fundamental Rights and the Political Dimension of Contract Law. 6.
Testing the Fundamental Rights Hypothesis. 7. What the Comparative
Legal-Political Analysis Explains. Epilogue to Part II. Summary and
Conclusion. Bibliography. List of Cases.