Editorial

Abstract

The contract is a very special tool: for private law, for European Law and, more generally, for the development of societal beliefs over the last few centuries. For private law it is the basic tool for the shaping of the legal relationship between private law subjects and is also the clearest example of the freedom to shape this relationship autonomously, according to individual preferences, unhindered by public intervention (party autonomy). It is here as well that the corresponding trend, that of protecting the interests of other persons affected, becomes most clearly apparent, with consumer law, with information duties and with competition law (‘materialisation’ of contract law). In European Law, the fundamental freedoms (the core instruments in EC Treaty Law) are mainly concerned to extend party autonomy across borders. The one substantive law area included in the EC Treaty from the beginning, competition law, is very much about effectively preserving the freedom of contracting. Moreover, the contract is not just one of the most intensively harmonised areas, but is also the only area where European Codification is clearly on the political agenda and feasible within a reasonable time. Finally, the contract is special for societal beliefs more generally. The basic constitutional and economic understanding of today’s democratic society and its market economy (the two pillars of ‘European’ society) is based on contractual thinking, just as the philosophy of law explains the very legitimacy of the law in terms of quasi-contractual arrangements. The largest trend in politics over the last fifty years is seen to be a dominance of contract-based societies over authority-based societies. Even in literature, contemporary beliefs, and in good jokes, the contract is the dominant legal instrument.