Common Frame of Reference & Social Justice
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Martijn Hesselink
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.
Artikel in diesem Heft
- Editorial
- The Structure of the DCFR – Which Approach for Today's Contract Law?
- Common Frame of Reference & Social Justice
- The Draft-Common Frame of Reference, Methodological Nationalism and the Way Forward
- Sense and Sensibilities: The DCFR and the Preservation of Cultural and Linguistic Plurality
- Pre-contractual Duties in the Draft Common Frame of Reference – What Relevance for the Negotiation of Commercial Contracts?
- The Draft Common Frame of Reference: Mistake and Duties of Disclosure
- Good faith and fair dealing in the DCFR
- The Draft Common Frame of Reference – Agency Authority and Its Scope – A Glance at Corporation Law
- The DCFR – Guarantee and Personal Security Contracts
- Burden of Proof in the Consumer Acquis and in the Draft Common Frame of Reference: Law, Fact and Things in Between
- The DCFR – Restitution, unjust enrichment and related issues
- EC Legislation. European Community Legislation and Actions
- Italy
- Free Movements and Contract Law
- Books Received and Book Reviews
Artikel in diesem Heft
- Editorial
- The Structure of the DCFR – Which Approach for Today's Contract Law?
- Common Frame of Reference & Social Justice
- The Draft-Common Frame of Reference, Methodological Nationalism and the Way Forward
- Sense and Sensibilities: The DCFR and the Preservation of Cultural and Linguistic Plurality
- Pre-contractual Duties in the Draft Common Frame of Reference – What Relevance for the Negotiation of Commercial Contracts?
- The Draft Common Frame of Reference: Mistake and Duties of Disclosure
- Good faith and fair dealing in the DCFR
- The Draft Common Frame of Reference – Agency Authority and Its Scope – A Glance at Corporation Law
- The DCFR – Guarantee and Personal Security Contracts
- Burden of Proof in the Consumer Acquis and in the Draft Common Frame of Reference: Law, Fact and Things in Between
- The DCFR – Restitution, unjust enrichment and related issues
- EC Legislation. European Community Legislation and Actions
- Italy
- Free Movements and Contract Law
- Books Received and Book Reviews
