Fundamental Rights, Contract Law and the Protection of the Weaker Party: A Comparative Analysis of the Constitutionalisation of Contract Law, with Emphasis on Risky Financial Transactions

Originally, contract law was considered to be immune from the effect of fundamental rights, the function of which was limited to being individual defences against the vigilant eye of the State. This traditional view, however, has recently been put under pressure as a result of fundamental rights increasingly becoming relevant for contract law. The relationships between private parties under contract law have started losing their immunity from the effect of fundamental rights, which has led many authors to speak about the constitutionalisation of contract law. The idea behind resorting to fundamental rights in contract law is the protection of the weaker parties such as family sureties against stronger parties such as banks. At the same time, within the system of contract law itself one can trace the tendency towards a more society-oriented contract law which manifests itself in the growing concern for the interests of the weaker party. How should fundamental rights and the modern contract law relate to each other? What role can be played by fundamental rights in the modern contract law in cases involving an imbalance in power between the contracting parties? This book embarks on a comparative analysis and combines theoretical and practical perspectives to provide answers to these questions.
In the first place, this book discusses the relationship between fundamental
rights and private law in general in Germany, the Netherlands and the United
Kingdom, as well as in European Union law and the law of the European Convention on Human Rights and fundamental Freedoms, against the background of the underlying rationale for the distinction between public and private law as it has developed on the continent. Secondly, the book examines whether and, if so, how the interests of the weaker party can be protected on the level of fundamental rights, on the one hand, and contract law, on the other, in the context of risky financial transactions, such as suretyship and investment contracts. The final part of this book builds upon the insights and conclusions drawn from the theoretical and practical perspectives to develop recommendations regarding the desirable extent of the constitutionalisation of contract law.