BRIDGING THE CANYON BETWEEN RIGHTS AND CONTRACT LAW

The title of this volume unites two disparate and possibly incompatible legal concepts. In the sphere of the legal system, the concepts of contract law and fundamental rights are usually regarded as lying poles apart. The law of contract is normally classified as a part of private law, which primarily concerns the legal relations between private individuals, whereas fundamental rights are traditionally believed to apply primarily or even solely to relations between citizen and the state in public law. Although a constitution that contains fundamental rights may provide a structure for the whole legal system including private law, it may not be generally expected that a bill of fundamental rights will have any direct bearing on the details of disputes between parties to a contract. No doubt we can anticipate that the values that inform fundamental rights, such as respect for liberty and property rights, will also inform the rules of private law. For instance, those values are likely to underpin support for the principle of freedom of contract and the protection of interests in property. Yet this expected congruence or homology in values between private law and fundamental rights is not the same as the construction of a bridge or mechanism by which the fundamental rights protected in public law determine or influence the content of the law governing contracts. The chapters collected in this work all address the character and implications of this recently constructed bridge that enables legal arguments in favour of fundamental rights to be used to steer courts in the resolution of contractual disputes.

This issue of the connection between fundamental rights and private law has been extensively analysed with respect to national legal systems. In the context of the modern nation state, a typical analysis suggests that a legal system's architectural design is that the national constitution, including any bill of rights, establishes a framework or basic structure for both the political system and the economic system. This constitution or framework of public law can set boundaries to the market and require the owners of private property and people entering transactions to comply with basic standards of justice outlined in the constitutional framework, including the basic rights.