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

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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.
ERCL 2/2006 The Old and the New Limits to Freedom of Contract in Europe 269 produces indeterminate and/or unclear outcomes in terms of social justice, but also sets the stage for the perfectionist model. 3. The Perfectionist Model In the paternalist model the state interferes with an individual’s choice in order to give effect to his true desires: the underlying assumption is that the individual’s judgement is clouded by mental biases or weakness of the will. In other words the subject is unable to identify and pursue his preferences. Recently on the European stage we find a harder kind of paternalism, that theorists of ethics call perfectionism. According to this theory, the interference of the state with the person’s choice is justified by the circumstance that the subject has a wrong set of preferences. Here the state enunciates a conception of the good life and frowns on choices which are inconsistent with it! While paternalism restricts our bargaining freedom only in the name of satisfying our deepest set of preferences, the perfectionist is a moralist who is prepared to ignore our deepest wishes when these are deemed unworthy. Instead he identifies the good ends we have to pursue and obliges us to seek them, whether we want them or not. 33 The perfectionist option is currently imposed by German and French courts when they restrict freedom of contract in the name of human dignity. Unlike paternalism, which deploys general clauses whose content is historically and socially determined (thus relative), this perfectionist pattern relies on a principle which is supposed to be absolute, transcendent and pre-existing to any political or social experience. a) The principle of human dignity In the constitutional traditions of EU Member States we find two different notions of dignity: social dignity and human dignity. The notion of social dignity refers to the right to a dignified life in terms of material and economic conditions. It has a positivist essence, implies a commitment to distributive policies and aims to achieve social justice and equality. The notion of human dignity is today overwhelming. It has a natural law essence, pre-exists the State and its law, and has several possible meanings, merging with individual freedom, autonomy and self-determination on the one hand, with the protection of the community’s basic values, on the other. 33 Buckley, n 11 above.
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