Binding Force and Remedies

2021 ◽  
pp. 196-271
Author(s):  
Martijn W. Hesselink
Keyword(s):  
Contract Law ◽  
Public Institutions ◽  
Binding Force ◽  
Political Theories ◽  
Political Question

This chapter is dedicated entirely to what may be regarded as the most fundamental political question of contract law, i.e. what justifies the legally binding force of contract law? What business do public institutions have in recognizing and enforcing private agreements? Could a society decide not to enforce contracts and still be sufficiently just? And if indeed a society ought to publicly recognize and enforce contracts, then which remedies should it make available? Leading contemporary political theories differ not only in the answers provided to this most fundamental political question of contract law but also in their respective understandings of the question, in particular on which aspects of it they consider particularly relevant.

ASAS KEPASTIAN HUKUM DAN ASAS KEBEBASAN BERKONTRAK SEBAGAI PERTIMBANGAN UTAMA DALAM PENYELESAIAN SENGKETA PERBANKAN SYARIAH (Kajian Yuridis Putusan MK Nomor 93/PUU-X/2012)

2018 ◽  
Vol 3 (1) ◽  
pp. 69
Author(s):  
Edi Hudiata
Keyword(s):  
Dispute Resolution ◽  
Judicial Review ◽  
Alternative Dispute Resolution ◽  
Contract Law ◽  
Islamic Banking ◽  
Constitutional Court ◽  
Legal Certainty ◽  
Ideal Norm ◽  
Freedom Of Contract ◽  
Binding Force

Since the verdict of the Constitutional Court (MK) Number 93/PUU-X/2012 pronounced on Thursday, August 29, 2013, concerning the judicial review of Law No. 21 of 2008 on Islamic Banking, it is no longer dualism dispute resolution. The verdict as well as strengthen the jurisdiction of Religious Court to resolve Islamic banking disputes. In consideration of the judges, judges agreed stating that Article 55 paragraph (2) and (3) of Law No. 21 of 2008 which is an ideal norm, contains no constitutional problems. The problem is the explanation of the constitutional article 55 paragraph (2) of the Act. The emergence of the Constitutional Court verdict No. 93/PUU-X/2012 which substantially states that the explanation of Article 55 paragraph (2) of Law No. 21 of 2008 does not have binding force, basically does not violate the principle of freedom of contract which is common in contract law. The parties are allowed to make a dispute resolution agreement out of religious court based on provisions as Act No. 30 of 1999 on Arbitration and Alternative Dispute Resolution. Keywords: dispute resolution, legal certainty and the principle of freedom of contract

GOOD FAITH PERFORMANCE IN CANADIAN CONTRACT LAW

2015 ◽  
Vol 74 (1) ◽  
pp. 4-7 ◽  
Author(s):  
Chris D.L. Hunt
Keyword(s):  
International Trade ◽  
General Principle ◽  
Common Law ◽  
Contract Law ◽  
Good Faith ◽  
Hospital Services ◽  
Similar Statement ◽  
General Duty ◽  
Binding Force

IN Mellish v Motteux (1792) 170 E.R. 113, 157, Lord Kenyon observed that “in contracts of all kinds, it is of the highest importance that courts of law should compel the observance of honesty and good faith”. This passage echoes a similar statement by Lord Mansfield 25 years earlier in Carter v Boehm (1766) 97 E.R. 1162, 1910. Despite these early statements of principle, the modern common law has been notoriously hostile to the notion that contracting parties are under a general duty of good faith in the performance of their obligations (see W.P. Yee, “Protecting Parties' Reasonable Expectations: A General Principle of Good Faith” (2001) 1 Oxford U. Commonwealth L.J. 195), and there is certainly “no firm line of modern cases to support such an obligation” in English law (see L.E. Trakman and K. Sharma, “The Binding Force of Agreements to Negotiate in Good Faith” [2014] C.L.J. 598). Nevertheless, some recent decisions in Australia, Canada, and England have begun to imply obligations to perform certain types of promises, in certain classes of contracts, in an honest manner, crafting, in the words of Lord Bingham, “piecemeal solutions in response to piecemeal problems” (Interfoto Picture Library v Stiletto Visual Programmes Ltd. [1989] 1 QB 433, 439 (CA)). A recent English example is Yam Seng Pte Ltd. v International Trade Corporation Ltd. [2013] EWHC 111 (QB) in which Leggatt J. found there to be an implied duty of “honesty” and “fidelity to the bargain” in the context of a long-term distribution contract. Importantly, His Lordship emphasised that whether such obligations can be implied is a matter of construction, which involves ascertaining the parties' objective intentions through conventional techniques such as the principle of business efficacy. As implying such obligations depends entirely on the context of each contract (at paras [137]–[143]) there is, at present, no general principle of good faith performance in English contract law, despite some case-by-case recognition (see Mid-Essex Hospital Services N.H.S. Trust v Compass Group UK and Ireland Ltd. [2013] EWCA Civ 200, at [105], [150]).

Introduction

2021 ◽  
pp. 1-15
Author(s):  
Martijn W. Hesselink
Keyword(s):  
Contract Theory ◽  
Contract Law ◽  
Private Law ◽  
European Law ◽  
European Contract ◽  
Methodological Nationalism ◽  
Political Theories ◽  
Normative Foundations ◽  
European Contract Law

This chapter provides the introduction to the book. It sets out how it will explore the normative foundations of European contract law by addressing fundamental political questions on contract law in Europe from the perspective of leading contemporary political theories. It states the book’s main aims and starting points, and introduces its methodology. The chapter also explains how the approach and focus of this study differs from all other contributions to contract theory, private law theory, and the theory of European law—in particular how it aims to move the debate beyond acquis positivism, market reductionism, normative intuitionism, private law essentialism, and methodological nationalism.

(No) Haircut for Hellas?

2016 ◽  
Vol 12 (03) ◽  
pp. 520-537
Author(s):  
Alexander Thiele
Keyword(s):  
Central Bank ◽  
Public Debt ◽  
European Central Bank ◽  
Debt Crisis ◽  
Public Institutions ◽  
Debt Ratio ◽  
Member States ◽  
European Central ◽  
Budgetary Policy ◽  
Political Question

Smouldering European debt crisis: overall public debt ratio as problem – Haircut as possible solution – Greece’s current creditors: public institutions (Member States and European Central Bank) – Insuring a sound budgetary policy as main goal of Article 125 TFEU – Consequences for a haircut by the Member States – The mandate of the European Central Bank and the prohibition of direct purchases of Member State bonds – Consequences for a haircut by the European Central Bank – Haircut as political question open for democratic debate

Polity, Economy, Neutrality

1995 ◽  
Vol 43 (3) ◽  
pp. 414-431 ◽  
Author(s):  
John O'Neill
Keyword(s):  
Civil Society ◽  
Public Space ◽  
Political Institutions ◽  
Good Life ◽  
Modern Society ◽  
Public Institutions ◽  
The Good Life ◽  
Political Theories

The liberal doctrine that public institutions be neutral between conceptions of the good is invoked in response to the pluralism of modern society. The response can take two distinct forms: dialogical – pluralism requires a neutral public space for conversation; and non-dialogical pluralism requires a contractual sphere which allows cooperation without conversation. Both reject perfectionist political theories like Aristotle's which holds that the end of political institutions is the good life. Given pluralism, perfectionism entails the coercive imposition of contested conceptions of the good. Against this view, the paper outlines a neglected argument in Aristotle's Politics for pluralism from perfectionist premises. It defends an Aristotelian conception of a pluralist politics and associational civil society. This conception provides a sounder foundation for a public space of conversation than does the appeal to neutrality and it escapes the charge of totalitarianism made by defenders of non-dialogical neutrality.

The Anatomy of the New French Law of Contract

2017 ◽  
Vol 13 (4) ◽  
Author(s):  
Genevieve Helleringer
Keyword(s):  
Contract Law ◽  
Civil Code ◽  
Good Faith ◽  
Actual State ◽  
French Law ◽  
Freedom Of Contract ◽  
Binding Force ◽  
The Law ◽  
Accurate Reflection

AbstractSince their enactment in 1804 as part of the French civil Code, the provisions relating to contract law had, until recently, remained almost untouched. That is not to say that the law of contract had not altered, but rather that the text of the Code was no longer an accurate reflection of the actual state of the law as interpreted by the courts. An extensively restructured and modernized version came into force on 1st October 2016. In an attempt to map the new French law of contract, this paper first seeks to evaluate the robustness of the guiding principles set out in the Code. By analysing how these principles are applied to the formation, interpretation and enforcement of contracts, the paper concludes that freedom of contract and good faith emerge strengthened by the reforms, while the binding force of contract has become more qualified. The paper also highlights the existence of less obvious but important trends relating to the parties’ behaviour and to the role of the judge. It demonstrates how unilateralism, anticipation, and equity are implicit core ideas lying behind many of the new rules.

Optionality

2021 ◽  
pp. 392-435
Author(s):  
Martijn W. Hesselink
Keyword(s):  
Family Law ◽  
Contract Law ◽  
Public Law ◽  
Public Institutions ◽  
Private Law ◽  
Choice Of Law ◽  
Cross Border ◽  
Mandatory Rules ◽  
Civil Codes

This Chapter focuses on a distinctive characteristic of an important portion of contemporary rules of contract law that sets them apart not only from public law but also from other branches of private law (e.g. property and family law), i.e. that these rules can be set aside freely by the contracting parties. Contrary to national civil codes, however, positive EU contract law does not include many instances of non-mandatory rules. This raises the question of what exactly justifies the existence of such optional rules: should public institutions be providing elaborate sets of contract law rules if private parties can set them aside as they please, and, if so, what kind of considerations should determine the content of such rules? Similar questions can be asked with respect to other instances of optional contract law, such as choice of law in cross-border contracts.

Context

2021 ◽  
pp. 16-67
Author(s):  
Martijn W. Hesselink
Keyword(s):  
Political Philosophy ◽  
Contract Law ◽  
Special Focus ◽  
Contemporary Theory ◽  
European Contract ◽  
Member States ◽  
Political Theories ◽  
The Eu ◽  
European Contract Law

The chapter presents the states of play in the two debates which this book aims to bring together, i.e. European contract law and political philosophy, and is intended for those readers who are not familiar with these debates. The first section offers an introduction to the Europeanization of contract law. Its main purpose is to set the scene, as it were, without unduly framing the argument. Thus, it introduces the main milestones, players, acts, and controversies. The objective is to provide the reader with a general but concrete sense of what is meant by ‘European contract law’. The second section, similarly, provides a brief introduction to normative political philosophy. It sketches the main traits of some of the leading contemporary political theories, with a special focus on aspects relevant for (European) contract law. Finally, a third section further sets the scene by briefly presenting the various pluralities with which any contemporary theory of contract law is confronted, i.e. the variety of contract types that parties may conclude, the different systems of contract law existing in the Member States of the EU, and the various roles that contract law plays in our lives. The section concludes by briefly introducing the main stances one may adopt, as a law maker or as a theorist, towards these pluralities, i.e. monism, pluralism (constrained or unconstrained), and neutralism.

Justifying Contract in Europe

2021 ◽  
Author(s):  
Martijn W. Hesselink
Keyword(s):  
Contract Law ◽  
The European Union ◽  
European Contract ◽  
Alternative Futures ◽  
Opt Out ◽  
Political Theories ◽  
Normative Foundations ◽  
Practical Question ◽  
The Eu ◽  
European Contract Law

This book explores the normative foundations of European contract law. It addresses fundamental political questions on contract law in Europe from the perspective of leading contemporary political theories. Does the law of contract need a democratic basis? To what extent should it be Europeanized? What justifies the binding force of contract and the main remedies for breach? When should weaker parties be protected? Should market transactions be held legally void when they are immoral? Which rules of contract law should the parties be free to opt out of? Adopting a critical lens, the book interrogates utilitarian, liberal-egalitarian, libertarian, communitarian, civic republican, and discourse-theoretical political philosophies and analyses the answers they provide to these questions. It also situates these theoretical debates within the context of the political landscape of European contract law and the divergent views expressed by law makers, legal academics, and other stakeholders. The book moves beyond the acquis positivism, market reductionism, and private law essentialism that tend to dominate these conversations, and foregrounds normative complexity. It explores the principles and values behind various arguments used in the debates on European contract law and its future to highlight the normative stakes involved in the practical question of what we, as a society, should do about contract law in Europe. In so doing, it opens up democratic space for the consideration of alternative futures for contract law in the European Union, and for better justifications for those parts of the EU contract law acquis we wish to retain.

scholarly journals KEDUDUKAN DAN KEKUATAN HUKUM MeMoranduM of understanding (Mou) SEBAGAI TAHAP PRAKONTRAK (KAJIAN DARI SISI HUKUM PERIKATAN)

2020 ◽  
Vol 8 (2) ◽  
pp. 173
Author(s):  
Devi Setiyaningsih ◽  
Ambar Budhisulistyawati
Keyword(s):  
Open System ◽  
Secondary Data ◽  
Contract Law ◽  
Civil Code ◽  
Normative Approach ◽  
Freedom Of Contract ◽  
Binding Force ◽  
The Law ◽  
Binding Power ◽  
Laws And Regulations

abstract<br />This article aimed to find out the MoU regulation according to Indonesian Law and the binding power of  MoU according to the law contract. This research employed juridical normative approach, emphasizing on literature to obtain secondary data from primary, secondary, and tertiary law materials. The results of the research that special arrangements regarding the MoU are not found in various laws and regulations in indonesia. The basis for the entry into force of the MoU in Indonesia is based on the principle of freedom of contract, as stipulated in Article 1338 of the Civil Code. In addition, it is also subject to the provisions concerning the contract in the Civil Code which basically adheres to an open system, which means that each person is free to enter into an agreement, both which has been regulated in the Law and which has not been regulated in the Law.<br />Keyword: Position; Binding force; Memorandum of Understanding; Contract Law<br /><br />Abstrak<br />Artikel ini ditulis dengan tujuan untuk mengetahui bagaimana pengaturan Memorandum of Understanding  (MoU) menurut hukum di Indonesia serta kekuatan mengikat MoU menurut hukum perikatan. Penelitian ini menggunakan pendekatan yuridis normatif yaitu menitikberatkan pada sumber kepustakaan untuk memperoleh data sekunder dari bahan hukum primer, bahan hukum sekunder, dan bahan hukum tersier. Hasil penelitian menunjukkan bahwa pengaturan khusus mengenai MoU tidak ditemukan di dalam berbagai peraturan perundang-undangan di Indonesia. Adapun dasar berlakunya MoU di Indonesia adalah didasarkan pada asas kebebasan berkontrak, sebagaimana diatur dalam Pasal 1338 KUHPerdata. Selain itu juga tunduk pada ketentuan tentang perikatan yang ada dalam KUH Perdata yang pada dasarnya menganut sistem terbuka, yaitu berarti setiap orang bebas mengadakan perjanjian, baik yang telah diatur dalam Undang-Undang maupun yang belum diatur dalam Undang-Undang.<br />Kata Kunci: Kedudukan; Kekuatan Mengikat; Memorandum of Understanding; Hukum Perikatan

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