Non-Mandatory Rules in European Contract Law
European Review of Contract Law, Vol. 1, pp. 43-84, 2005
INHOUD EN WERKING VAN DE OVEREENKOMST NAAR BELGISCH EN NEDERLANDS RECHT, Jan Smits & Sophie Stijns, eds., pp. 101-134, Antwerpen & Groningen: Intersentia, 2005
PRO FORMA? ESSAYS ON THE ROLE OF FORMAL RULES AND FORMAL REQUIREMENTS IN PRIVATE LAW, A.F. Salomons & G.J.P. de Vries, eds., pp. 139-174, The Hague: Boom Juridische uitgevers, 2006
43 Pages Posted: 4 Apr 2005 Last revised: 8 Apr 2011
Date Written: 2005
Abstract
This paper examines whether the European Union should enact one or more sets of non-mandatory rules of contract law. In order to be able to answer this question, it examines several perspectives on non-mandatory rules and concludes that there is no decisive, merely "technical" answer; the question is political. The paper further shows that, in spite of the principle of freedom of contract, many "non-mandatory rules" are de facto mandatory. This leads to the conclusion that, in this respect, there is no categorical difference between mandatory rules and non-mandatory rules. The consequence is, on the one hand, that there is no reason to exclude non-mandatory rules as a category from unification efforts with regard to contract law, whereas, on the other, a political process is necessary with regard to non-mandatory rules which assures that the important political choices are made in a democratic way.
Keywords: Default Rules, Mandatory Rules, Contract Law, European Law
JEL Classification: K12
Suggested Citation: Suggested Citation