Abstract

Abstract In the first part of his book, Peter Benson elaborates for the common law that fairness in exchange is not only a fundamental principle of contract law, but that it is, moreover, conceptually rooted in the idea of private autonomy. For the common law presumes that a party to a contract intends, in principle, to exchange performance at its value and on fair terms. The following comment shows that this presumption also animates German contract law, including the rules on the review of standard terms. In the second part, Benson develops the image of a harmonious complementarity of private law, which is characterised by transactional justice, and public law, which instantiates distributive justice. The following comment disputes the claimed harmony by demonstrating the fundamental asymmetry in the institutionalisation of both forms of justice in civil society.

Highlights

  • In the following, I would like to treat the two topics that are most important to me in Peter Benson’s book

  • The second topic is the idea of background justice, i.e. the relationship of civil society to its state

  • I would like to explain how the judicial review of standard terms is to be understood in Benson’s theoretical framework of contract as a transfer of a right, i.e. after it is excluded that review of standard terms

Read more

Summary

Introduction

I would like to treat the two topics that are most important to me in Peter Benson’s book. F. Rödl can be illuminated by means of economic analysis[1] or that it can be explained as consumer protection.[2] It will be shown that contract law presumes that a party intends to make a legally binding promise of its own performance to another party only in exchange for an equivalent consideration and on fair terms. Rödl can be illuminated by means of economic analysis[1] or that it can be explained as consumer protection.[2] It will be shown that contract law presumes that a party intends to make a legally binding promise of its own performance to another party only in exchange for an equivalent consideration and on fair terms It is this presumption which carries the judicial review of standard terms, as well. I would like to assert a reverse relationship: Private law provides background (in)justice for the state, which must continuously and inadequately try to compensate for the disinterest of private law in human need

Justice in Contract
Contract Law’s Presumption
Valid Consent About a Transfer of Value
Valid Consent About Unfair Terms
Background
Detour on Rawls’ Difference Principle
Lexical Priority and Regulative Primacy
Private Law as Background
Full Text
Published version (Free)

Talk to us

Join us for a 30 min session where you can share your feedback and ask us any queries you have

Schedule a call