|Udo Reifner, Hamburg
CONTRACT THEORY: RENTING A SLAVE – EUROPEAN CONTRACT LAW IN THE CREDIT SOCIETY
English Version of the Paper presented at the
Conference on Private Law and the Many Cultures of Europe University of Helsinki Faculty of Law Department of Private Law Helsinki 27th August 2006
by Udo Reifner
The present move towards a joint European contract law will promulgate a pure market driven concept of contract law which lacks the cultural links to the social and cultural developments in the member states. Its outdated sales law model that assumes spot contracts in a competitive market hinders even the discussion of social justice within the contractual relations. The prevailing long term contracts in practice require institutional arrangements for the future of the contract and according to economic contract theory less emphasis on its conclusion.
In addition doubling contractual relations credit has gradually changed its patterns. It integrates labour and consumption giving individual access to future income and among others to goods and services that require prepayment of its use. While this returns human relations to the roots of partition of labour the credit contract is at the same time the most abstract form of legal ideology: consumers exchange money for money. This contradiction is the basis of the dialectical development of a new contract model.
Legally credit reveals that renting of labour, goods, services and money is the form of law where social interest have to be incorporated. Besides developing its own collective contract theory the paper discusses also the role consumer law plays as a seemingly market driven justification of the present form of legal unification in Europe. Consumer law seems to help people, care for the weaker especially through the incorporation of politically problematic purpose driven economic language.
Replacing freedom and equality by protection and care, consumption by use and demand it questions the relevance of social and collective interest and the incompleteness of the formal contract. An alternative model of contract law would have to acknowledge the incompleteness of long term contracts and learn from labour and tenant law how to include and add collective interest into a European contract model that could meet the needs of its inhabitants in the future .
The present move towards a joint European contract law may produce two important results: first it will abolish barriers of diversity which hinder the standardised distribution of products and services of primarily multinational providers and second following the American model it will (if this process is not significantly enriched and changed) promulgate a pure market driven probably outdated concept of contract law which lacks the cultural links to the democratic development of the people in the member states. It is true that peaceful political unification in Europe would have never taken place without the market and that there is no alternative to a market driven approach. But a market driven approach can have many faces. We therefore should enrich market driven processes politically and culturally. States may use the transnational aspirations of powerful multinational enterprises to promulgate unification. It is up to legal and social science to show how social needs and aspirations could equally be introduced into a European body of contract law.
The papers in German (full version with citations) and in English (short version) are annexed.
Created: 17/08/06. Last changed: 01/02/11.
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