Stefan Grundmann, ‘The Future of Contract Law’

Abstract:
This contribution starts out with the fundamental changes society and law have undergone since 200 years ago with the ‘discovery of consensus’ and asks the question whether at the turn of our millennium, we are living similarly in a period of fundamental change. In this context, the contribution asks the question about the future of contract law. It does so primarily for Europe. To answer this question, it is argued that both institutionally and in substance contract law is indeed undergoing fundamental change, starting only a few decades ago. Contract law has become in its dynamic aspects largely European, decreasingly national, and will become over the next few decades, in substance, method and style, even primarily European. It has become a law in which party autonomy and instruments of order and protection have become similarly important and this process will continue. Standard contract terms, consumer protection, anti-discrimination are only three key elements; the financial crisis will trigger further thinking. The aim is to discover an equilibrium in which the material freedom of all parties concerned is best furthered. The article then argues that a trend towards codification comes together with a trend not to consider the code as ‘universal order’ any longer, that a trend towards generalisation comes together with a trend to differentiate more even in a general part of contract law: between different types of contract partners, different types of groups of contracts (spot contracts and long-term contracts), and different paradigms for the formation of contracts. The article concludes with an examination of some core areas where major steps of modernisation have been taken lately and it forecasts that contract law will be more international, interdisciplinary, more interested in the rule-setting process, more market and business oriented. In short it predicts that a similar discussion to that found within debates about corporate governance will develop for contract governance on a European level.

Stefan Grundmann, The Future of Contract Law. European Review of Contract Law. Volume 7, Issue 4, Pages 490–527, ISSN (Online) 1614-9939, ISSN (Print) 1614-9920, DOI: 10.1515/ercl.2011.490, /November/2011.

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