Subordinating contract law to fundamental rights: Towards a major breakthrough or towards walking in circles?
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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The increasing use of fundamental rights arguments to protect weaker parties in contractual disputes in many European legal systems leads us to ask to what extent this will occur in the future rather than whether fundamental rights will have an impact on the relationships between private parties under contract law. One of the fundamental issues to be resolved in this respect is which body of law substantially determines the outcome of a contractual dispute between private parties - fundamental rights or contract law. The answer to this question is of crucial importance for the future of (European) contract law. It will determine whether contract law will be turned into a wholly malleable vehicle for promoting fundamental rights or whether contract law will enter into a dialogue with fundamental rights and remain decisive for the regulation of private law relationships generally, and in particular, for the protection of weaker parties. In German law there is a line of judicial authority subordinating contract law to the fundamental rights contained in the Federal Constitution. It is argued here that serious objections exist against such an approach.
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