General clauses or standards (Generalklauseln, clauses generales) are legal rules which are not precisely formulated, terms and concepts which in fact do not even have a clear core. They are often applied in varying degrees in various legal systems to a rather wide range of contract cases when certain issues arise issues such as abuse of rights, unfairness, good faith, fairness of duty or loyalty or honesty, duty of care, and other such contract terms not lending themselves readily to clear or permanent definition. Here for the first time is a systematic discussion of this kind of rule in the evolving and dynamic context of European contract law. A collection of twelve insightful essays by leading European law authorities, the book is based on a conference organized jointly by the Society of European Contract Law (SECOLA) and l'association Henri Capitant, held in the 'grande salle' of the French Supreme Court in Paris in 2005.
The subject is approached along three distinct but interconnected avenues:
The authors demonstrate that a focus on general clauses in contract law, embracing as it does a wide range of types of contracts, helps enormously with the necessary integration of legal scholarship and economic approaches, and of legal science and legal practice in the field. Numerous analytic references to relevant cases and EC Directives give a practical impetus to the far-reaching but immediately applicable theory presented in this important book. As European contract law continues to develop rapidly, this seminal contribution is sure to increase in value and usefulness.
| Ch. 1 | General standards and principles, clauses generales and generalklauseln in European contact law - a survey | 1 |
| Pt. 1 | Comparative law | 21 |
| Ch. 2 | Theorie et pratique de la clause generale en droit Francais et dans les autres systemes juridiques romanistes | 23 |
| Ch. 3 | The functions of general clauses, exemplified by regarding Germanic laws and Dutch law | 41 |
| Ch. 4 | Theory and practice of the 'general clause' in English law : general norms and the structuring of judicial discretion | 57 |
| Pt. 2 | The EC contract law context | 77 |
| Ch. 5 | Shifting power from legislations to judges and from the central level to the national level | 79 |
| Ch. 6 | Les clauses generales dans le droit du travail europeen - les regles internes et leur impact dans le droit communautaire | 85 |
| Ch. 7 | Social rights, general clauses, and the acquis communautaire | 111 |
| Ch. 8 | The general clause or standard in EC contract law directives - a survey on some important legal measures and aspects in EC law | 141 |
| Pt. 3 | Fundamental considerations and the European codification dimension | 163 |
| Ch. 9 | L'analyse economique de la clause generale | 165 |
| Ch. 10 | Le devoir de se comporter de bonne foi dans les contrats de consommation | 189 |
| Ch. 11 | The duty to deal fairly in commercial contracts | 197 |
| Ch. 12 | General clauses and specific rules in the principles of European contract law : the 'good faith' clause | 205 |
Overview
General clauses or standards (Generalklauseln, clauses generales) are legal rules which are not precisely formulated, terms and concepts which in fact do not even have a clear core. They are often applied in varying degrees in various legal systems to a rather wide range of contract cases when certain issues arise issues such as abuse of rights, unfairness, good faith, fairness of duty or loyalty or honesty, duty of care, and other such contract terms not lending themselves readily to clear or permanent ...