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Varieties of Welfarism in European Contract Law (Wilhelmsson, ELJ 2004)

August 11, 2009 By: Admin Category: Social Justice


A scheme describing six welfarist directions in modern contract law is used to assess the extent to which current European measures that affect contract law have embraced these welfarist developments. Although some EC legislation may be interpreted as possessing elements of a limited welfarist perspective, it is concluded that bolder welfarist strands have proved largely absent. A European civil code or contract code would prove too static an instrument to promote the evolution of further welfarist developments.

Blunt Dichotomies on Contractual Values

The issue of social justice in contract law has finally been brought more clearly back on the agenda in the debate on harmonisation of European contract law. As such, the social justice issue is of course not new. Even contract literature from decades ago swells with descriptions and analyses of the changes in contract law towards a greater inclusion of other social values than purely market-oriented, liberal ones. In the present situation, those old ideas, as well as more recent reformulations, retain their actuality. The focus on harmonisation in the debate of today, however, requires a representation of the ideas in some new clothing.

In the analyses of what, very generally, could be called social justice in contract law, the change is often pictured by the help of dichotomies like freedom versus solidarity,1 individualism versus altruism, and market-individualism versus consumer-welfarism, to mention but only a few. The new phenomena have also been described with the help of concepts like ‘social contract law’ and ‘contractual solidarity’ as well as principles like ‘the principle of regard and fairness’. In the European setting these dichotomies and new concepts, which typically refer to the growth of mandatory rules protecting weaker parties like consumers in the contractual relationship, can be said to reflect the intrusion of the values of the welfare state into the market-oriented structure of traditional contract law. Therefore the new features are also called ‘welfarism in contract law’ for short….

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