The Old and the New Limits to Freedom of Contract in Europe

268 Maria Rosaria Marella
ERCL 2/2006
state intervention in the social conflict regarded as such) to the achievement
of the social equilibrium that is granted by respect of fundamental rights. 31
There are two classic arguments against the social model and the rhetoric of
weak parties. One is that new limits to freedom of contract for family guarantees
or prenuptial agreements, for instance, generate the indirect effect of
restricting access to credit and to marriage respectively, at the expense of the
beneficiaries of the protecting policy themselves. The second argument is that
strong protection of weak parties generates a pattern of cross-subsidies at the
expense of the weakest social groups. The protection of the weak parties
turns out to exclude people at the bottom of the social pyramid: there will
always be weak parties that are weaker than the weak parties protected by
protecting policy. 32 Or there are always weak parties that are not acknowledged
as such. How about mistresses or best friends, as inthe case of family
guarantees? How about non-pregnant women as to the case of prenuptial
agreements? And what about domestic contracts concluded by unmarried
partners?
In my own view, however, there is a strong argument against this European
social model: it is that it shapes limits to freedom of contract on the basis
of the indeterminacy of fundamental rights (constitutional principles might
entail moral or efficiency reasons that conflict with one another); that it emphasises
fundamental rights rather than equality or it emphasises inequality
only through the violation of fundamental rights. In so doing, it not only
31 By contrast, in the liberal interpretation offered by Teubner, n 18 above, the Bundesverfassungsgericht’s
enforcement of constitutional principles is to be interpreted not in
relation to the (questionable) violation of individual fundamental rights, but in consideration
of the defence of those constitutional ground rules that govern the different
areas of social life, like the family, with its Grundnorm: solidarity, and the market,
based on the individual rational choice.
Another way of putting the question is the idea that claims of freedom in contract law
are not to be exclusively balanced against claims of social welfare and distributive
justice; that contractual doctrines have not only an enabling but also a cautionary function;
that contract law should endorse not only freedom of contract but also freedom
from contract. See T. D. Rakoff, ‘Is “Freedom from Contract” Necessarily a Libertarian
Freedom?’ (2004) Wisconsin Law Review 477. Limits to freedom of contract are not
necessarily limits to liberty: on the contrary, some contracts are not permitted and some
others are permitted only if legal requirements are fulfilled in order to protect freedom
from contract. The Weberian idea that ‘how freedom of contract works out in practice
depends on social conditions’, underlies this position as well as the social interpretation
of para 138 BGB.
However the same is true for freedom from contract, too. Also freedom from contract
performs its libertarian role if social conditions permit it.
32 Kennedy, n 28 above.