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Martijn W. Hesselink
Non-Mandatory Rules in European Contract Law
This article 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 article 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.
European Review of Contract Law, Walter de Gruyter
Print ISSN: 1614-9920
Volume: 1, 05/2005
Pages: 44 - 86