Black Lists and Private Autonomy in EU Contract Law

Abstract In the first part of his book, Peter Benson elaborates for the common law that fairness in exchange is not only a fundamental principle of contract law, but that it is, moreover, conceptually rooted in the idea of private autonomy. For the common law presumes that a party to a contract intends, in principle, to exchange performance at its value and on fair terms. The following comment shows that this presumption also animates German contract law, including the rules on the review of standard terms. In the second part, Benson develops the image of a harmonious complementarity of private law, which is characterised by transactional justice, and public law, which instantiates distributive justice. The following comment disputes the claimed harmony by demonstrating the fundamental asymmetry in the institutionalisation of both forms of justice in civil society.

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Machine Acting and Contract Law – The Disruptive Factor of Artificial Intelligence for the Freedom Concept of the Private Law

UIR LAW REVIEW ◽

10.25299/uirlrev.2021.vol5(1).6890 ◽

2021 ◽

Vol 5 (1) ◽

pp. 1-18

Author(s):

Stefan Koos

Keyword(s):

Artificial Intelligence ◽

Structural Changes ◽

Contract Law ◽

The Internet ◽

Private Law ◽

Disruptive Effect ◽

The European Union ◽

Private Autonomy ◽

The Impact ◽

Advanced Development

Technologic evolutions of the last two decades, such as the development of the internet, had a strong disruptive effect to the society and the economy. However, because of the flexible concepts of the civil law codifications a disruptive effect in the private law until now did not exist. Especially the legal consequences of the internet were integrated into the private law without bigger categorial or structural changes. This applies equally to most of the cases of the use of artificial intelligence (AI) in recent times. With more advanced development of AI-systems, though, it may not be possible anymore to apply the traditional terms of the private law to the use of AI without leaving the constitutional law background of the private law. This article discusses the impact of the use of a future advanced independent AI on the concept of the private autonomy in the contract law. Furthermore, it gives an overview on the new legislative approach of a human centric use of AI in the European Union.

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Comparative Genealogies of “Contract and Society”

German Law Journal ◽

10.1017/glj.2020.84 ◽

2020 ◽

Vol 21 (7) ◽

pp. 1393-1410

Author(s):

Klaas Hendrik Eller

Keyword(s):

Critical Theory ◽

Empirical Work ◽

German Law ◽

German Idealism ◽

Contract Law ◽

Legal Order ◽

Path Dependencies ◽

Basic Institution ◽

Private Autonomy ◽

The Uk

AbstractSince contracts form a basic institution of every legal order, the interdisciplinary orientation of concepts of contracts reveals socio-legal inclinations of a legal order more broadly. Contrasting the UK and US Common Law of contracts with developments under German law, this Article examines the relation between normative and social science approaches, notably rooted in economics, economic sociology, and social theory in the genealogy of contract law. A shared leitmotif over the 20th century has been the drive to account for the societal embeddedness of contract. However, conceptualizations of “Contract and Society” differ considerably between legal orders in their disciplinary ingredients and design. In the US, and to a lesser extent also in the UK, the rather continuous reception of legal realism has paved the way for broad interdisciplinary perspectives on contract law, ranging from classical socio-legal, empirical work (e.g., Macaulay), economics (e.g., Williamson), sociology (e.g., Powell), and critical theory (e.g., Kennedy) to today’s landscape, where essentially instrumental and ideal-normative theories compete. Alternatively, in Germany, where the realist heritage was more ephemeral, the transformations of contract law were processed from within legal discourse and foremost in their effects on private autonomy as conceptualized, for example, in German idealism, discourse theory and critical theory. Similarly, the “constitutionalization” of contract law—even if championed for fostering private law’s reflexivity—has, for the most part, defied a socio-legal orientation. Finally, the Article highlights the path dependencies with which these different starting points translate in current debates around the role of contract in transnational governance.

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