Common Frame of Reference & Social Justice

Martijn Hesselink

doi:10.1515/ERCL.2008.248

Abstract

This paper evaluates the draft Common Frame of Reference (DCFR) in terms of social justice. It concludes the DCFR has all the characteristics of a typical European compromise. Ideological and esthetical purists will certainly be disappointed. In this respect, it has much in common with the Constitutional Treaty. This is not necessarily something to be worried about. A common frame of reference is not made, in the first place (if at all), for esthetical or ideological reasons; it is meant to provide some normative guidance in the further development of European contract law.

Overall, from the point of view of social justice the DCFR is fairly balanced. There is certainly room for improvement. The laissez-faire concept of juridical acts should be removed. The list of underlying values, which may play an important role in the interpretation and further development of the CFR by the courts, must be made more balanced. The protection of consumers should be extended to SMEs at least in certain cases (notably unfair terms). The classical role of good faith as a basis for new judge-made obligations should be restored. However, the characterisations of the DCFR by some scholars as ‘a law for big business and competent consumers’ or, alternatively, as a ‘massive reduction of private autonomy’ are both exaggerations.

Common Frame of Reference & Social Justice

Abstract

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