Private Law Theory

ABSTRACT
Fundamental rights and Private law can collide in private-to-private relationships (horizontal situations) where the rights of two or more parties are compromised. In contractual cases, both Private law and Fundamental rights courts tend to solve their respective conflicts between private interests or Fundamental rights using the same tool: party autonomy, which is exercised through consent. Consent is also key to regulate the exercise of both private rights and Fundamental rights. However, Fundamental rights do not behave in the same way private rights do, so unlike contracts concerning private rights where the consent is enforceable and irrevocable, in contracts that waive Fundamental rights, consent needs to remain revocable. This chapter draws the following question: what correct tool should be applied by ordinary courts and Fundamental right courts in those cases where there is not only a friction between private interests and Fundamental rights, but also the original consent is revoked, and there is a multi-party relationship? The decision by the Spanish Constitutional Court 117/1994, where the Fundamental right to image and reputation is at stake and multiple parties are involved, provides useful insights in this regard. In our view, in pursuit of the correct solution in such a complex case the basic elements of personality rights had not been taken into consideration. For that reason, we propose a different approach than that followed by the Court, where (1) the Private law logic where Fundamental rights can be inserted should be applied, because of the fact that it could helped Courts examine the original agreement between the parties, and analyse the actual position of a third-party assignee from a different perspective; (2) the importance of ascertaining whether there is a clash between two private interests, or a clash between a Fundamental right and a third-party’s contractual right; and (3) in cases where there are interferences with Fundamental rights, the third party’s good faith status should not prevail over the holder’s Fundamental right to image and reputation.

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David Ramos Muñoz and Elia Cerrato García, The Fundamental Right to Image, Contract and Third Parties in Spain: A Roadmap for Pluralist Private Relations? in Luca Siliquini-Cinelli and Andrew Hutchison (eds), More Constitutional Dimensions of Contract Law: A Comparative Perspective (Springer, June 2019).

First posted 2019-07-02 05:39:36