EFFICIENCY AND JUSTICE IN EUROPEAN CONTRACT LAW

The subject matter of the essay is freedom of contract in the European perspective. The author points out three different kinds of limits that can restrict freedom of the parties: efficiency, distributive justice and values. According to the author the interpreter’s task is to clarify on which basis the chosen solution lies. The fulfillment of this task is essential for a correct understanding of the current debate on the making of a European private law and can greatly help in elucidating the background of central issues in European contract law (i.e. consumer protection). In the author’s view arguments of “social justice” are often used in the current debate without any regard to political philosophy background. This essay is a first attempt to determine the different implications of various theories of justice (among which, utilitarianism, liberalism, marxism) on contract law. In the last part of the paper the author applies this theory to a particular field: freedom of contract in setting a damage rule (liquidated damage clause).