【法学课件】合同法的宪法化.docVIP

THE CONSTITUTIONALIZATION OF CONTRACT LAW: Something New under the Sun? Olha Cherednychenko(1) Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. Contents 1. Introduction 2. Different solutions to the same problem 3. Two parallel tendencies in modern private law 4. The constitutionalization of contract law: What is this all about? 5. The Bürgschaft case: A top-down approach by the German Constitutional Court 5.1 From the theory of indirect effect of constitutional rights in private law indirectly to the theory of direct effect? 5.2 Balancing competing interests: The right to party autonomy v. the right to party autonomy in conjunction with the principle of the social state? 5.3 Party autonomy v. party autonomy in conjunction with the principle of the social state: Is there a possibility to strike an appropriate balance? 6. The OBrien and Van Lanschot Bankiers v Bink cases: A bottom-up approach by the English House of Lords and the Dutch Supreme Court 7. Conclusion Notes 1. Introduction Constitutional rights and contract law - these notions, which were originally considered to be far apart from each other due to the sharp analytical and historical distinction common in European legal systems between public and private law, have recently started to move towards each other with increasing speed. The role of constitutional rights, which were conceived as an instrument for the protection of the individual against the power of the State, is no longer only limited to this kind of relationship. Purely private law relations, including contractual relations to which the State is not itself a party, have been rapidly losing their