The Constitutionalization of Contract Law
PhD student: Mrs Prof O.O. Cherednychenko
Promotor: Prof F.W. Grosheide
Duration: 1/9/2002 - 1/9/2006
PhD defence: Utrecht, 18/4/2007
Due to the sharp analytical and historical distinction between private and public law, which is common in European legal systems, contract law has traditionally been considered to be immune from the effect of fundamental rights. This traditional view has, however, been put under pressure as a result of the tendency towards the so-called constitutionalization of contract law. The idea behind this development is that contract law is not an autonomous system for dispensing justice between private parties, but that it is subordinate to the value system of the Constitution. As a result of this, the role of fundamental rights, which were conceived as an instrument for the protection of the individual against the power of the State, is no longer limited to this kind of relationship. Contractual relations have been losing their immunity from the effect of fundamental rights. The main aim of the research is to analyze what the constitutionalization of contract law actually entails and whether by the use of fundamental rights in contract law something substantially new can be gained for the protection of the weaker contractual party in comparison with the well-established contract law concepts such as duties to inform.