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Nogler/Reifner Social contracts and DCFR (trilingual Draft)

September 21, 2009 By: udo.reifner Category: DCFR

Luca Nogler/Udo Reifner

Social contracts in the light of the Draft Common Frame of Reference for a future EU Contract Code

1. The ignored social dimension of the DCFR

The Draft Common Frame of Reference[1] has been already criticized for its dogmatic weakness and political implications[2], extended scope by a limited basis[3], its broken relation to national legal cultures[4]. This essay wants to focus on the vertical questions of whether the DCFR would threaten and undermine the social acquis of continental European social contract law. Such an approach has a common basis with the critique from the Manifesto group[5] on the deficit in social justice shared by an increasing number of authors[6]. Even the EU-Parliament before officially discussing this Draft has asked to explore the “role of fairness and social justice in the DCFR”[7] which led to a general defence of the DCFR by a member of the Manifesto group recommending some minor amendments to its principles.[8]

Starting from the point that social justice is an important criteria for a future European Civil Code we choose a quite different methodology. Social justice as a yard stick as proposed by the EU-Parliament is a far too arbitrary and vague concept in private law. Its genus proximus is justice which all law has to obey to. Therefore one would have to concentrate on its differentia specifica which is hidden in the tiny word social. The English language, in which the DCFR paradoxically has been drafted by civil lawyers who have learned their English in a foreign legal context is already a barrier to a proper understanding of the word social in law.[9] Looking at its Latin roots (socius) does not help either since it refers only to such behaviour which we would call today joint or collective.[10] In this sense each legal rule is by definition a social norm[11] so that this denominator would be meaningless.

But the notion has since long evolved in present national as well as EU-social policies. To understand its meaning these development should have been taken much more into account by contract lawyers.[12] Social policy aims at ensuring a decent life for all. It concerns the generation and use of income in a modern money economy for managing one’s own family and social life in dignity providing access to those goods and services which are especially needed. It wants to protect human beings from all forms of poverty and deprivation especially from lack of income, usury and exploitation, insufficient means for personal well-being and give them shelter from (the effects) of unemployment, homelessness and overindebtedness.[13] These tangible foundations lead us to a solid ground where those contracts prevail which respond to the generally accepted aspirations of social policy which we would like to call social contracts.

Social contracts are long-term contracts on the way human life time is spent.[14] They comprise labour contracts as well as all other legal forms where labour is invested to gain one’s living through dependent long-term relations including collective forms of secondary labour income. Because labour income flows neither steady nor eternally and is not paid where it is needed credit services in money and in kind provide for its local and timely allocation. Credit is the necessary complementary contractual relation in which either income is allocated to when and where it is needed (consumer credit, mortgage loans, private pension schemes, educational finance; bank account and payment services) or in which access to certain services like housing, transportation, water, heat, electricity are provided in the form of deferred payments or rent. Social contracts therefore use the legal form of a rent contract which in Roman law was called locatio conductio (operarum, rei and irregularis) as a counterpart to emptio vendita. The locatio conductio socialis[15] provides a common legal ground for labour, tenants and finance lawyers[16] who have no reason to accept that the rise of the emptio vendita to a timeless spot contract[17] and to an asocial (do ut des) form[18] of understanding human relations for a sales society which has already been overcome should be the only form in which European private law should be formed to manage the challenges of the present credit and service society. Although this relation between contract law and social policy is obvious there seems to be little connection within the legal sciences and with regard to sociology and political science as well as welfare economists[19] who keep questions of Europeanisation of labour law[20] and social policy[21] separate.

2. The Limitation to Consumer Sales

After a quite unstable and contradictory political discussion on legal integration starting from the collection of Principles in existing European private law (PECL) up to the development of a unified European civil code (Study Group[22]; Padua project)[23] Commission and Parliament finally asked legal scholars to provide A More Coherent European Contract Law increasing the coherence of the acquis communautaire, the promotion of the elaboration of EU-wide standard contract terms[24]. The recitals of the actual Draft of a Common Frame of Reference (DCFR) have reduced its aspirations as well as its own area of reference, scope and function in a way which does not seem to match with the outcome:

1. Promoted by the Study Group on a European Civil Code it it is now called merely Draft Common Frame of Reference (DCFR[25]) which wants to provide “principles, definitions and model rules of European Private Law” similar to the approach of the long-term Trento project on Principles of European Contract Law (PECL). (Introduction 1 f)

2. While PECL and all other projects referred directly to the Acquis of legal culture in Europe embodied in national private law and its great historic codifications (BGB, Code Civil, Burgelijke Wetbok, ABGB, Codice Civile) the present draft has officially opted for an EU-approach where EU-law instead is understood as only that law created by EU-institutions. The newly founded Research Group on Existing EC Private Law (the ‘Acquis Group’) bases its work explicitly solely on genuine EU-law inherent in EU-Directives and the treaty as applied by the European Court of Justice. (Introduction 49 ff)

3. Within this body of EU-Directives problems of legal and scientific competence have led to a further narrowing down on consumer protection (Acquis consommation).

4. But even this is reduced. In the searched material as well as in the Draft itself only sales related Directives on standard terms and marketing forms (electronic, at distance etc) are taken into account excluding most financial services[26], labour[27] as well as tenant[28] law principles.

The authors of the DCFR call it “an academic draft” (Int. 1) developped by “a body of legal scholarship” with a “scholarly elaboration” of 20 EU-Directives and as well as of the jurisprudence of the ECJ. “The DCFR is an academic text. It sets out the results of a large European research project and invites evaluation from that perspective.” (Int 6) This self-explanation merits some doubts. The number of limitations and reductions starting from English language to the selection of used material, the outreach of science, the persons involved, the money used from political sources at EU and national level to proceed make it difficult to believe that this project has not been influenced by political decisions and directions which have finally defined its outcome.

It especially seems that questions of legal and personal competence have influenced this draft. The astonishing ability of its authors to follow even opposing instructions from the political side cannot be ignored totally.

The question of legal competence to provide the DCFR has made it especially difficult for social contracts to influence its contents. The Treaty gives no competence to the EU on general civil law and even less to social policy. Arts 125-128 TEC have even opted for an Open Method of Coordination which is contrary to what Commission and Parliament wanted to establish for contract law in general. Harmonisation of social contracts through a 29th regime is not envisaged by the Treaty especially in the light of the experience with the European Social Charta.[29] Beyond this part of the Treaty the EU does not assume that there is a sufficient Acquis Communautaire in social contracts which could justify a Draft Code. It therefore uses or misuses the loophole of its competence in consumer protection (Art.153 TEC) to propagate the idea of a European Civil Code without regard to social policy. This has influenced the selection of scholars, the idea of justice behind the Draft and the empirical basis for its reasoning where housewives are more visible than labourers and debtors. It led to the promotion of a a more industry driven idea of a rather free European internal market where binding social rules in contract law should be restricted to a minimum. (Principle 2)

But not only a lack of legal competence hinders social contracts to become more important in the DCFR. Also the group active in its development show a certain deficit in dealing with social contracts. Internationally active English speaking lawyers are traditionally focussed on commercial law or doing their research under the label of IPR in the general parts of contract law. These parts reflect the dominant sales law models[30] of contract law of the 19th century property rule where time and social policy play a less important role. Further more only a few authors of the DCFR are known for their skills in legal sociology and political science necessary to understand social contracts. Legal realism, sociology of law or Rechtstatsachenforschung, the most important areas for labour, tenant and consumer credit law, are missing. Instead the traditional separation of Sein und Sollen has been further developed through the adoptation of the efficiency approach of Economics in which reality is replaced by models of efficient behaviour of information seekers as average consumers.[31]

Having in mind these restrictions the DCFR could still be accepted as an academic effort to develop a Draft Common Frame of Reference for a European Consumer Sales Law (DCFR-ECSL). Such denomination would have extended the Acquis of the Consumer Sales Law Directive already integrated in the Proposal for a Directive on Consumer Rights from October 8, 2008[32] to other sales related consumer Directives like the ones on Unfair Practices (2005/29/EC), Time-share (94/47/EC), Package Travel (90/314/EEC) and E-Commerce (2000/31/EC). This would have provided a consistent ECSL with adequate legal competence and sufficient legal foundations in other international sales law efforts like the Uni-Droit Principles or the CISG which have been generalised already by the PECL principles. There would be no problem with tort law and undue enrichment in this draft as far as they cover either primarily the reversion of intended sales contracts or sales related contracts (undue enrichment) or primarily punctual non-contractual human relations (tort, delict). Even nearly the whole general part of the DCFR including its definitions could be maintained since very few deal with life-time or similar social issues. As far as the principles are concerned those who intend to cover social contracts like solidarity, cooperation or some forms of consumer protection (early withdrawal) would instead have to be removed since they do not recognise the thorough legal and social research available among social contract lawyers in this area which is especially visible in the absence of any reference to collective forms of law.[33]

The problem of the DCFR is that it provides more, other and different rules as well as principles than its formal basis, legal and personal competence would allow. It goes beyond EU- consumer law, provides an applicable civil code instead of mere principles and uses the word principles wrongly for recitals which introduce a new questionable political element into the application of civil law. An honest disclosure of is limited area of application would allow to develop a second project on social contracts with an own general part, default rules and principles which could then later be merged into a true DCFR.

3. Its Political Threat to Social Contracts

The DCFR will affect the further development of a European contract law in so far as national legislators as well as the European Court of Justice will increasingly make use of it. It will have enormous impact on social contract law which as we will show later is more and more governed by general civil law in the credit society.

3.1. A European Commercial Code for social interests?

In spite of its introductory self-presentation the DCFR has been designed in the form of a European civil code (Model rules book 1 to VII) imitating in this part the techniques of the cited national codes with their general and specific parts, with binding and default rules, with contractual and legal obligations, with unilateral and consensual juridical acts (Art. II.-I:103). EU-Directives do not such direct effects nor obligations for the national legislator to offer default rules nor did they or will according to the Treaty cover such a vast area of civil law. The general part of the DCFR rules contain a number of abstract basic definitions and rules which have no counterpart in EU-regulation but are directly derived from especially the German civil code.

Although the DCFR only pretends to use EU consumer law it goes far beyond existing EU-Directives. It regulates (a) all relations of natural and legal persons, (b) provides general definitions and rules for the whole of civil law (Book I to III) including family law, labour law and the law of successions where party autonomy plays a role and civil lawyers usually refer to the general parts of the civil code. (b) In its special parts it covers also non-contractual legal obligations like tort law, undue enrichment and benevolent intervention in another’s affairs[34] which with a single exemption in product liability are not covered by Consumer-Directives.

Driven by its desire to provide a consistent civil code for Europe it uses an own more or less liberal policy approach to fill the gap where no EU precedents exist and national law provides controversial solutions. Given the still existing differences visible especially in the existing social models within the EU[35] it anyhow opts for a common law instead of a civil law approach where responsibility and good morals are replaced by fairness, causa and will by reasonable expectations, protection by information, social regard by anti-discrimination and ordre public by party autonomy.

3.2. Political programme in a legal form

The DCFR is not only problematic by its omissions but also by the open form it is presented. This purpose driven open form of rules is rather unique and also dangerous especially for politically sensible areas. In social contracts suppliers/employers and workers/consumers have partly antagonistic interests which need secure and clear delimitations in the law which exclude such interventions as they have taken place in legal history especially not only under fascist regimes.[36]

The initial part called Principles does not provide general and abstract rules which in the hierarchy of legal reasoning have to be observed when interpreting ordinary rules. The explanation (Introduction 10) refers to the use of the word in other contexts but not to law. Especially the reference to the PECL or to an administrative use by the Commission cannot explain why a law is introduced by separate principles which should only not be abstract since “abstract principles tend to contradict each other.” (Intr. 11) In fact the named Principles are taken form the Acquis approach and therefore resemble recitals to a model law as used in Common Law Legislation and EU-Directives. But EU-Directives are different from statutes since they address a legislator and not citizens or administrations. In so far Civil law has always rejected the so called subjecitve or historical interpretation of the law where a legislator can change the effects of a law by providing his underlying purposes. This safeguard against political voluntarism in civil law has shown its values when comparing the civil law under Italian fascism and German Nationalsocialism. In Germany docile lawyers trained to replace the law by the moral persuasions had only to be provided with one single purpose rule added to the beginning of the penal code as well as with the order to use the party programme as the source of principles for the civil code to be able to misuse the legal system as a form of an efficient tool to first exclude and then exterminate millions of people with the help of the law.[37] Again in stalinist East Germany the communist party used this strategy and provided its judges with the party programme full of “principles”. European lawyers aware of this historic failure of a purpose driven law should fiercely reject such rules where the wording of the rules is submitted to its purpose.

Ninty nine recitals led down on 39 pages would normally be what a government would call Motive[38] delivered together with the Draft law to the law making bodies. Instead of an inflation of legal purposes true legal principles at least in continental philosophic tradition would have to be ordered hirarchically and in its last resort related to one single purpose of law which Viehweg called the central topoi which is Justice. It is in its first part true and its second probably exaggerated and ahistorical that “Justice is hard to define, impossible to measure and subjective at the edges, but clear cases of injustice are universally recognised and universally abhorred.” (Intr. 40) Instead the inflation of such purposes leads to the opposite of Principles. They open the door for political argumentation devaluating the quest for justice by juxtaposing it to either empty or dangerous principles of efficiency or market integreation. The most chocking ahistorical principle is then that of efficiency. This neo-liberal weapon of social destruction comes directly from a bureaucratic view of power and sets aside the fact that human society is build onto two unalienably connected pillars: labour and love. Love can never be efficient and labour without love is inhuman.

We therefore have to agree with the conservative critique that the present DCFR is already a politically important nucleus of a future genuine Civil Code of Europe which will have important repercussions for the social policy impact on the development of national civil law in the near future. The draft occupies the key area of general rules in private law and will therefore be especially important for social contracts whose importance seems to be until now totally neglected in the apolitical and merely legal development of this Draft. With social contracts the vast body contract law regarding all kind of long-term labour relations, housing and services for basic needs as well as financial services for consumers especially consumer credit, mortgage loans, private pension systems and basic payment services.

3.3. An English Welfare Model for Social Contracts?

Similar to its open form the DCFR has been developed in English language.[39] This has been an option for the selection of people who developed this Draft, an option for the contents and the way Common Law is formulated and designed and very importantly also an option for the social model which underlies many of its implications.

The drafters of the DCFR have a predominant reputation in their experience and knowledge of the relation between the law of their home country and then especially the law of the UK and America and special skills in English legal language[40]. They are mostly trained commercial lawyers and specialists in international private law. Both qualification do not favour the introduction of social contracts and social thinking into the DCFR.

With regard to the social system the Anglo-Saxon countries represent a one of the ‘three worlds of welfare capitalism’[41] which is especially weak in social care, solidarity and state responsibility. The main differences lie not only in the social security system but also in the “differences in taken-for-granted normative assumptions regarding the demarcation line separating the functions the welfare state is expected to perform from those that ought to be left to private provision, either within the family or by the market)… These structural differences have high political salience. They correspond to fundamentally differing social philosophies … The present diversity of national social-protection systems and the political salience of these differences make it practically impossible for them to agree on common European solutions”.[42]

British and continental European contract law mirror these deep rooted differences. “It is only by understanding English pragmatism that we can understand English reservations against achieving social justice through law”[43]. Nominalism and empricism are the main obstacles Micklitz identifies for the English contract system to accept principles of social responsibility. It is therefore not suprising that social contract lawyers are more internationally organised among each other in the non-English environment of the European Continent.

Using the English legal language as a primary tool to formulate the Draft Common Frame of Reference is therefore already a threat to the introduction of social contracts into its thinking and principles. Alone the literal meaning of the word “social” is so diffuse in English that in continental European thinking it has nearly no meaning at all. “Social events, socialising, social seat” have nothing to do what on the Continent is perceived as “social”. In America it has even got a negative connotation identified with eastern style socialism, state intervention, communism etc. In French , Italian and German law social/sociale/sozial has evolved into a quite sophisticated concept to describe a form of action and behaviour with regard to other members of society. It is present in Rousseaus contrat social, in the German constitution as Sozialstaat, in politics as Sozialsystem or in “sozialem Verhalten” or “Asozialem Verhalten” in educational science. “Soziale Gerechtigkeit” in German and “justice sociale” and “justitia sociale” in French and Italian would even be a pleonasm. Jjustice/justitia in the catholic Latin culture is by itself social. In the core social Encyclical of Leo XII, rerum novarum, paragraph 33 justice is either social or not at all justice: “The first and chief is to act with strict justice – with that justice which is called distributive – toward each and every class alike.” and in paragraph 34 it continues with the core of social policy when it says: “Justice, therefore, demands that the interests of the working classes should be carefully watched over by the administration, so that they who contribute so largely to the advantage of the community may themselves share in the benefits which they create-that being housed, clothed, and bodily fit, they may find their life less hard and more endurable.”

This continental European tradition is different from the Anglosaxon protestant and Calvinistic tradition where wealth is more seen as an individual merit and less as a social obligation. this is why the English language does not distinguish between “gesellschaftlich/gemeinsam” on one hand and “sozial” on the other . It uses “social” for a behaviour which translated into German[44] by i.e. “gemeinsam, gemeinschaftlich, gesellschaftlich, sozialdemokratisch, gemeinwirtschaftlich, kameradschaftlich, gesellig, gut, etatistisch” etc. while in the English dictionary the word “sozial” in German is falsely translated into “caring”. In so far the use of English as the core and only language for the development of this Draft is already a political decision against European social contract law since “the use of a language has already an important influence on the way of thinking”[45]

The vague pragmatic approach is already visible in the somehow arbitrary selection of “principles” even as they are now grouped into four general principles of freedom, security, justice and efficiency to which a number of other principles are grouped like Protection of human rights, solidarity and social responsibility, cultural and linguistic diversity, welfare, internal market which are sometimes human rights (freedom, equality), sometimes “desirable technical goals” (effectiveness) or sometimes only the expression of a political will (internal market).

As far as social contracts are concerned the relation between those principles which promote property, free flow of capital and economic freedom and those who have distinctive social implications are the test for its understanding of the the idea of justice. In the Introduction (No 13) the distinction between “nonmercantile values like human rights and solidarity and social responsibility” and seemingly other values is embarrassing. It looks as if the primary goal of this draft is not to provide a Civil Code where all citizen find adequate forms of expression but a mercantile code with some exemptions for non-mercantile values.

3.4. Collective Interests as Charity

For social contracts it is especially interesting to see how solidarity and social responsiblity (Intr. 18) is defined. Here we learn that these principles are “generally regarded as primarily

the function of public law (using, for example, criminal law, tax law and social welfare law) rather than private law.” With regard to the history of the welfare state the authors seem to ignore the important role trade unions played in its beginning and still today. It was only by strikes and collective agreements that the idea of the welfare state could progress. Both are constitutionally acknowledged parts of private law. The public law theory of collective labour law was an early try of the authoritarian state to prevent the most precious form of freedom from the labour movement: the freedom to organise and to act in solidarity. This form of solidarity is mirrored in other forms of social contracts like consumer credit or tenant law where exploitation, eviction, usury have got limits in the name of a solidarian society in which mere profit interest have to respect certain basic needs and human dignity. Instead the authors of the DCFR present a totally different idea of solidarity in private law. “In the contractual context the word “solidarity” is often used to mean loyalty or security.” One could call this a misuse of the word. Loyalty is a more or less feudal concept which in labour law (“Treuepflicht”) has only recently been abandoned because of its paternalistic and conservative connotations. Security in consumer credit contracts is a concept which is only used for a secure claim against debtors who in the name of security are foreclosed or garnished. When the authors continue that “the principle of solidarity and social responsibility is also strongly reflected, for example, in the rules on benevolent intervention in another’s affairs, which try to minimise disincentives to acting out of neighbourly solidarity” they should just read the existing law which talks about moral and legal obligations to act as if a contract would have been concluded. Solidarity in social contracts is the expression that social interests need a collective form of expression in which taking care of others is the expression of self-interest and not of charity. The authors even allude directly to the charity approach when they continue: “It is also reflected in the rules on donation, which try to minimise disincentives to charitable giving (an expression of solidarity and social responsibility which was at one time all-important and is still extremely important).” Charity and solidarity have been opposing principles at the turn of the 18th century where all kind of charitable associations tried to convince the labour movement not to ally but to leave the care for the individuals to the owners of capital as well as to the state.

Not a single of the seven principles issued by the European Coalition for Responsible Credit would qualify for this kind of understanding of solidarity and social responsibility which ignores different classes in society and the tradition of the labour movement.

4. A Problematic Concept of contractual Justice

The social question has become the core question of the industrialised societies of the West in the 21st century. The idea that private law can leave this question to the welfare state and its droit public has less been challenged by partisans of social justice than by the advocates of commercial freedom and private law. Especially in the economic analysis of law doctrine it has been claimed that market freedoms are more efficient to provide security also for social aspirations. They have seen it as sufficient if Justice provides fair procedures instead of social outcome.[46] This concept shared widely among economists and especially common law lawyers neglects the main functions of law as tamed social power as a peace-keeping alternative to war (Hobbes)[47], is still perhaps the most convincing justification for a unified European legal system in the eyes of ordinary citizens.

The DCFR starts with the following phrase: “1. The four principles. The four principles of freedom, security, justice and efficiency underlie the whole of the DCFR. Each has several aspects. Freedom is, for obvious reasons, comparatively more important in relation to contracts and unilateral undertakings and the obligations arising from them, but is not absent elsewhere. Security, justice and efficiency are equally important in all areas. …Law is a practical science. The idea of efficiency underlies a number of the model rules and they cannot be fully explained without reference to it.”

While law is basically defined as a restriction to freedom especially the freedom to pursue ones own interest through private force (Feud, self-help[48]) the DCFR assumes “that formal and procedural hurdles should be kept to a minimum.” (Principle 2) It further states in Principle 3: “As a rule, natural and legal persons should be free to decide whether or not to contract and with whom to contract. They should also be free to agree on the terms of their contract.” While classical codifications were cautious enough not to legislate the principle of freedom of contract the DCFR dares to formulate this not only as a principle but even as a rule in Art. II.-I:102 when it states “Parties are free to make a contract or other juridical act and to determine its contents”. This statement in the indicative form shows how deep neo-liberal model thinking is rooted in the minds of the authors of this draft. Mass unemployment, homelessness, overindebtedness, lack of drinking water and electricity, child labour, monopolies, adiposis, all kind of addictions but also imposed standard terms and longterm dependency just do not exist for the saint principle of freedom of contract. These are all exemptions which due to the exclusion of social contracts have not come into sight when this idealised principle was formulated.[49] There is much to be said about the relation between Justice and Freedom which is basically the freedom of the other. (see Art. 2(2) German Constitution).

Justice is commonly thought – this is also the starting point of the DCFR [50] – to have two applications which Aristotele distinguished as «distributive» and «commutative» justice. The first, distributive justice, is concerned with the “distributions of honour or money or the other things”; the second form of justice, commutative justice, is about the treatment of an individual in a particular transaction.

«Of particular justice and that which is just in the corresponding sense, (A) one kind is that which is manifested in distributions of honour or money or the other things that fall to be divided among those who have a share in the constitution (for in these it is possible for one man to have a share either unequal or equal to that of another), and (B) one is that which plays a rectifying part in transactions between man and man. Of this there are two divisions; of transactions (1) some are voluntary and (2) others involuntary- voluntary such transactions as sale, purchase, loan for consumption, pledging, loan for use, depositing, letting (they are called voluntary because the origin of these transactions is voluntary), while of the involuntary (a) some are clandestine, such as theft, adultery, poisoning, procuring, enticement of slaves, assassination, false witness, and (b) others are violent, such as assault, imprisonment, murder, robbery with violence, mutilation, abuse, insult».[51]

Come si vede, Aristotele ascriveva alla «commutative» justice sia le obbligazioni (transactions between man and man) che nel classic Roman Law nascevano contractual (voluntary) che quelle che nascevano extra-contractual or in via di arricchimento senza causa (involuntary).

The regime governing property rights and the law governing personal rights (status) venivano, invece, indirettamente ricondotti alla «distributive» justice.

4.1. Justice «without regard to the person»»

The law governing personal rights (ed in particolare la schiavitù), and therefore the «distributive» justice, regolavano la maggior parte degli employed relationship during the period of the Roman Empire il cui diritto era connotato da un forte individualismo[52].

During the pre-modern period, i diritti riconducibili alla logica della «distributive» justice vennero classicamente giustificati come basati sulla natura come forza originaria la cui legittimazione discendeva infine direttamente da Dio. Ciò conferì alla «distributive» justice un rango privilegiato rispetto alla «commutative» justice. Economic barter has been demonised by the canonical doctrine. La società era dominated by the principle of hierarchy [53] and therefore by the obligation of obedience. The hierarchy era prescritta dalla giustizia distributiva divina. Giustamente si è detto che “the law of master and servant was a metaphysical structure” [54].

La teorizzazione di un ordine economico based he freedom of contract and the market – that assumed that the persons have the natural instinct «to truck, carter, and exchange one thing for another» [55] fu possibile solo perché la legittimazione del diritto moderno non deriva più (in modo discendente) dal diritto naturale ma (in modo ascendente) dalla storia ovvero nei regimi democratici dalla volontà del popolo. Ciò ha comportato – con le Costituzione del secondo dopoguerra – la necessità di «stabilizzare il punto di vista morale all’interno del diritto positivo» [56]. Ma soprattutto qui rileva il fatto che il descritto rovesciamento comporta che la «commutative» justice assuma ora un ruolo sovraordinato rispetto alla «distributive» justice. Come chiarisce Canaris: «Die iustitia commutativa bzw. Correctiva as justice “without regard to the personmay readily be understood in both contract law and in the area of prohibited activities (that is to say, criminal offences) as meaning that the value of the persons concerned is treated as absolute » [57]. Per questo leading modern scholar of French employment law (Gerard Lyon-Caen) affermava that the contract «est porteur de valeurs liées à la liberté de l’homme» [58]. Solo grazie alla sovra-ordinazione della commutative justice è stato possible realizzare il superamento der feudalistischen Klasse-, Stände- und Zunftordnung [59].

4.2. What Justice for Social Contracts?

Otto von Gierke is credited with having grasped the importance of relationships of obligation, whose performance need not be fulfilled at any precise moment, but over a period of time. Such relationships, which in the original version of the BGB were referred to in only one paragraph of the regime governing the most important type from a social viewpoint, namely the Dienstvertrag (§ 617 BGB), confer a further function – according to Gierke[60], still – on the law of obligations with respect to the traditional one, of transferring the ownership of property: long-lasting relationships of power.

La gerarchia, che in precedenza era prescritta dal diritto naturale, si realizza nei social longterm contracts like labour, tenancy and consumer credit contracts comunque di fatto. In particolare le persone sono esposte a questi rapporti di potere perché la controparte ha il potere di redistribuire the access to those goods and services which are especially vital needs. Attraverso questi social contracts le persone proteggono il loro human beings from all forms of poverty and deprivation especially from lack of income, usury and exploitation, insufficient means for personal well-being and give them shelter from (the effects) of unemployment, homelessness and overindebtedness.

Come affermava «the father of the science of labour law [61]», Hugo Sinzheimer, il diritto non deve considerare solo il profilo formale della libertà del cittadino, ma proiettarsi sul suo essere reale e cioè coglierlo nella concretezza dei suoi bisogni relazionali [62]. From the Genossenschaftslehre of Otto von Gierke, Sinzheimer had learnt that law can play an entirely secondary role in the evolution of law.[63] La grande intuizione di Sinzheimer, fu che the employment relationship non rappresenta solo un rapporto contrattuale ma anche una relazione di potere. Il datore di lavoro – così come oggi giorno le banche ed i proprietari delle case – possiede una «Verteilungsmacht – distributive power» [64] in respect of the narrow commodities of labour and income. One issue to be addressed by private law consists in the role of the “distributors”.

Se teniamo in considerazione quanto abbiamo specificato in precedenza in ordine alla distinzione aristotelica tra commutative and distributive justice, possiamo affermare che the long-term contracts need the combination of entrambe le forme di giustizia.

Contrary to the system of private law in which the law of contracts is dominated by values bound up with the circulation of goods (and therefore on the commutative justice), in which the worker is likewise considered as the owner of his own body (Adam Smith) or his potential for work which he sells or, at any event, hires out to his employer, Otto von Gierke observed, in his pioneering study of long-term contracts in 1914, it is beyond doubt that «the general doctrine of obligations rests upon relationships of obligation which are transitory in nature»[65]. The specific problems of long-term contracts had to be resolved in isolation from the law of obligations; by combining the latter with, respectively, the regime governing property rights for contracts guaranteeing the right of possession, the use or usufruct of goods and, on the other hand, the regime governing personal rights for those which he colourfully called the Rechtsgschäfte for social organisation which included, for example, employment contracts.

History for a while, if we limit the discussion to Germany, judged Gierke to be in the right. From the beginning of the Weimar Republic until the middle Eighties of last century, work relationships were described as personenrechtliche Gemeinschaftsverhältnisse [66]. This solution also found favour outside Germany, because it was supported by the father of modern French employment law (Paul Durand) [67] and in Italy by a faction of academic writers in the early period after the Second World War.

Sennonché questa soluzione era ancora basata on the antiquated medioeval assumptions that labour is a re source of the community. Come nella locatio ad longum tempus si attribuiva in via redistributiva al conduttore una posizione di property right, il lavoratore veniva protetto attraverso il meccanismo – anch’esso redistributivo, della relazione di personal right che l’employer aveva nei suoi confronti obbligandolo alla Fürsorge del lavoratore stesso. Ciò si giustifica attraverso l’ordine naturale delle classi che veniva dotato di una forza sostanzialmente metafisica.

With the decline of the Ford model, the pure contractual view of Philipp Lotmar [68] has come to predominate in Germany, too – as it already had for some time in Italy[69] and France[70], which does not have recourse to personal or property rights, but which leds to the innovation (that is, to support the needs of long-term employment contracts) wholly within – and not outside- the context of contractual relationships of obligation.

4.3. National Social Law as Distributive Contractual Justice

Tuttavia, la realizzazione di questa total contractual view non è semplice perchè – come osserva Canaris – the significant form of justice within persent contract law «is indeed following Aristote’s insight the iustitia commutativa and not iustitia distributiva» [71]. Il diritto contrattuale generale è essenzialmente a pure procedural justice.

«Non appartiene alla cultura del contratto, la funzione di risolvere i problemi del benessere, individuali o collettivi che siano»[72]. Ciò è tanto più vero per il mondo anglo-americano. Sono i limiti legali che fanno del mercato un ordine orientato al raggiungimento del massimo benessere collettivo possibile.

Premesso che, oltre al diritto contrattuale, lo Stato possiede altri strumenti per raggiungere gli obiettivi redistributivi che deve costituzionalmente perseguire: Bildungs-, Sozial- und Steuerrecht, l’esperienza delle discipline nazionali dei social contracts dimostra che vi sono sechs Aspekte von entscheidender Bedeutung per la realizzazione di un diritto contrattuale che risponda alla logica della distributive justice: die Sicherung des Gebrauchswertes zu angemessenen (“affordable”) Preisen, di complusory Regulierung der sozialen Machverhältnisse di aus der Vertragsbeziehung enstehen, justice in Ansehung der Person, Zugang und Beendigung sowie die Behandlung menschlicher Not.

A) Whereas, under commercial law, use-value only acquires significance to the extent that it falls pretty much by chance into the hands of the consumer, as part of proprietorship, in continuous social obligations the guarantee of precisely that use-value is central. Thus, a landlord is increasingly held responsible for the effective and humane utilisation of the dwelling by the tenant (§§535 Abs. 1 S. 2 BGB). Similarly, a lender has a duty to ensure that the loan can be applied effectively in the purchase of the item for which it was taken out, by ensuring that the item is free from defects (defence against enforcement under §359 BGB), which is comparable to the duty of employers to ensure that the place of employment is humane and that wages are paid consistently. Moreover, all continuous social obligations share a distrust of pure market pricing, which is the cornerstone of the ideology of commerce.

In the case of services of first necessity, even in the wake of neo-liberal deregulation and privatisation, the State has established public commissions equipped with extensive mechanisms for the control of pricing in the areas of, for example, radio, television, gas, water, electricity, the railways[73]. What the minimum wage achieves in terms of obligations in the context of employment, whether directly or indirectly through pay agreements under individual employment contracts, legislation on rents achieves through regulations relating to “local comparable rents” under §§558 ff BGB. While consumer credit in France, the Benelux countries, Italy and Poland is regulated through statutory restrictions on usury, in Germany the public policy requirement under §138 Abs.1 BGB extends the principle of double the average local comparable rent to interest rates as well.

B) In place of the neutrality of contract law in terms of the outcomes of the freedom to contract and freedom of competition, direct regulation arises in respect of the relationships involved in distributive power – which resembles government power.

For this reason labour and employment law has opened the way to the use of techniques which traditionally were part of public law, such as, for example, the diffusion of fundamental rights in the context of employment relationships, the prohibition on discrimination, abuse of power, unequal treatment, the conditioning of the exercise of extra-judicial powers (dismissal power) by the existence of a factual assumption.

C) Alongside this absence of content, however, the commercial principle of freedom to contract also had to be subject to limitations in order to take humane considerations into account. While it is possible to interpret anti-discrimination legislation in terms of competition law, the legislation contains provisions for the employment of the disabled or women; similarly, regional savings bank legislation creates duties to provide current accounts for overindebted people. In the US, Community Reinvestment legislation compels the banks to lend in impoverished districts[74]. The rental housing market is subject to prohibitions against voids and compulsory provision in times of crisis, and a duty is imposed on the utilities to connect the supply of telephone, gas, water, electricity or transport. Continuous social obligations thus do not leave human needs or the dependency on wage labour out of contracts as is suggested by commercial contracts.

D) Justice with regard to the person (and not without regard to the person):: the regimen for employees’ contracts governs the parties’ reciprocal obligations on the basis that this contract, so far as the worker is concerned, performs a pre-eminently social function of support and affirmation of his/her personality. For this reason, the risk of non-performance based on impossibility, linked to specific events i quail possono colpire le persone (illness, accident, pregnancy, conscription, performance of public duties, etc ) relating to the debtor, is transferred from the latter to the creditor who, contrary to the synallagmatic principle (Ohne Arbeit kein Lohn), is required to pay remuneration for a certain period[75].

E’ interessante notare che la recente crisi finanziaria, ha fatto sì che la logica della Ansehung der Person del diritto del lavoro si sia affermata anche nel contesto di altre relazioni di durata. Ad esempio, uno degli impegni più importanti che gli istituti di credito italiani hanno preso per accedere ai Tremonti bond, le obbligazioni bancarie sottoscritte dallo Stato per dare liquidità al sistema bancario in difficoltà che prevedono una remunerazione tra il 7,5% e l’8,5% e che sono regolate dal decreto legge 29 novembre 2008, n. 185, convertito, con modificazioni, dalla legge 28 gennaio 2009, n. 2: le banche si impegnano a sospendere per almeno 12 mesi il pagamento delle rate del mutuo ai dipendenti che hanno perso il lavoro e ai cassintegrati (v. il protocollo d’intesa siglato tra Abi e Ministero del Tesoro). Come si può vedere, è stato realizzato un allargamento della tipica logica giuslavoristica della traslazione del rischio dell’impossibilità sopravvenuta legata a specifici eventi personali (malattia, disoccupazione) dal cliente alla banca.

Alla logica della Ansehung der Person, è anche da ascrivere the protection of non-economic interests : a) Schutzpflichten (obligation to regard and care) (§ 241, comma 2, BGB) are recognised, protecting the debtor’s person and – so resolving the problem for the solution of which the Gierke tradition had created the Fürsorgepflicht (paternalistic care) – that of the creditor [76] ; b) the rules on liability involve the payment of damages only if the debtor is responsible for the inadequate performance of the obligation (§ 280 BGB); this presupposes the differentiation between the content of the duty and the object of the credit right [77] and the construction of contractual liability on the basis of inadequate performance (see the Italian Civil Code and the 2002 reform of the BGB); d) the possibility of claiming damages for non-economic loss.

D) Justice with regard to the person (and not without regard to the person): the regimen for employees’ contracts governs the parties’ reciprocal obligations on the basis that this contract, so far as the worker is concerned, performs a pre-eminently social function of support and affirmation of his/her personality. For this reason, the risk of non-performance based on impossibility, linked to specific events i quail possono colpire le persone (illness, accident, pregnancy, conscription, performance of public duties, etc ) relating to the debtor, is transferred from the latter to the creditor who, contrary to the synallagmatic principle (no work, no pay), is required to pay remuneration for a certain period[78].

E’ interessante notare che la recente crisi finanziaria, ha fatto sì che la logica della Ansehung der Person del diritto del lavoro si sia affermata anche nel contesto di altre relazioni di durata. Ad esempio, uno degli impegni più importanti che gli istituti di credito italiani hanno preso per accedere ai Tremonti bond, le obbligazioni bancarie sottoscritte dallo Stato per dare liquidità al sistema bancario in difficoltà che prevedono una remunerazione tra il 7,5% e l’8,5% e che sono regolate dal decreto legge 29 novembre 2008, n. 185, convertito, con modificazioni, dalla legge 28 gennaio 2009, n. 2: le banche si impegnano a sospendere per almeno 12 mesi il pagamento delle rate del mutuo ai dipendenti che hanno perso il lavoro e ai cassintegrati (v. il protocollo d’intesa siglato tra Abi e Ministero del Tesoro). Come si può vedere, è stato realizzato un allargamento della tipica logica giuslavoristica della traslazione del rischio dell’impossibilità sopravvenuta legata a specifici eventi personali (malattia, disoccupazione) dal cliente alla banca.

Alla logica della regard for the person, è anche da ascrivere the protection of non-economic interests : a) protective duties (obligation to regard and care) (§ 241, comma 2, BGB) are recognised, protecting the debtor’s person and – so resolving the problem for the solution of which the Gierke tradition had created the Fürsorgepflicht (paternalistic care) – that of the creditor [79] ; b) the rules on liability involve the payment of damages only if the debtor is responsible for the inadequate performance of the obligation (§ 280 BGB); this presupposes the differentiation between the content of the duty and the object of the credit right [80] and the construction of contractual liability on the basis of inadequate performance (see the Italian Civil Code and the 2002 reform of the BGB); d) the possibility of claiming damages for non-economic loss.

E) What is much more clear is the restriction on freedom to contract in its inversion, namely in the termination of continuous social obligations. All continuous social obligations are subject to protection from termination, going beyond contractual arrangements to introduce certain forms and fees and, at the same time, under credit legislation, an attempt at amicable continuation of the relationship is required (§ 498 Abs.2 BGB) Moreover, under landlord and tenant legislation and employment legislation, termination is restricted structurally, and in both cases “social justification” is required, arising from the conduct, the person of the employee or the tenant (§1 KschG, §573 BGB) or from overriding economic considerations (“business necessity”, “prevented by reasonable business operations”), in which account must be taken of social considerations. (§§574 BGB, 1 KSchG). The breach of contract required to terminate a contract is also made relative, and must attain a certain level of gravity in all continuous social obligations, such as the continuation of conduct in breach of contract despite a warning under employment or tenancy law, or arrears of two payments of rent or credit instalments.

F) The litmus test of private law thinking is the interaction with human need.[81] The return of homeless soldiers. Sickness, accident, family circumstances, childcare, matters affecting contractual duties long-recognised in employment law have not made much progress in relation to other continuous social obligations, where the principle “you have to have money” overshadows everything. For that reason, the German Civil Code avoids any echo of financial liability in the context of potential indeterminate obligations limited by labour capacity, instead inserting “termination for compelling reasons” in the General Part, thereby enabling employers, landlords and lenders to further their interests through termination of the contract, without explicit reference to the social needs generated for employees, tenants and borrowers.

Yet what appears logical within commercial ideology seems illogical when examined in the light of the sociology of law, not only in France, Norway or Finland, where social force majeure[82] has found its legal expression. With the right to pay arrears of rent until the first hearing date in the eviction proceedings, the Civil Code created the opportunity in practice for the social welfare office to intervene with a payment and make termination of the tenancy for arrears of payment ineffective. Nor do borrowers face liability forever when they are in hardship. If they run out of money, consumer bankruptcy comes to the rescue under §§286 ff InsO. That law provides for release from debts after six years (§301 InsO), irrespective of the contract, while in France and the USA immediate release is possible where borrowers have no assets and, in the Netherlands and Belgium, a period of 3 to 4 years applies. Contrary to all exchange principles, the hard-hearted creditor discovers that his claim is worthless, while the debtor “lives on”, unlike an insolvent company. The debt dies, instead of the person of the debtor.[83]

As a result of the reform of debt law and the European privatisation of pension provision, rent and consumer credit have entered the German Civil Code in §§498 ff, 535 ff BGB. The same applies to all long-term consumer transactions, such as contracts with travel agents, bank accounts and remittance payments. Reform of insurance law has brought with it the application of contract law concepts in that area as well and produced the equivalent of a General Part for continuous social obligations, which takes into account the humane element of risk. In their form as private law agreements, retirement pension policies, long built into the former Reichsversicherungsordnung (now the Sozialgesetzbuch – Social Code), took their social form from tax law, under which only agreements were given tax advantages which incorporated criteria known as “Riester-Rente” criteria, meeting the requirements of old-age certification legislation. Even in this context, public law governing savings and investments in securities and endowment policies merely had the appearance of being untouched. Even there, the underlying principles of guarantees of nominal value for the protection of the vital interests of consumers in their old age were taken into account in general legal principles.

4.4. «The DCFR is particulary concerned to promote what Aristotele termed corrective justice»

Mentre il diritto contrattuale dell’Europa continentale ha risentito – almeno in parte – delle descritte evoluzioni normative imposte dal diritto dell’employment contract, così come degli altri social contracts, nella common law il diritto contrattuale è rimasto ancorato ad logica strettamente su base commutativa: a neo-Roman Law. “European Legal System are not converging” [84]. L’affermazione che dà il titolo a questo paragrafo [85] sembra fatta su misura per il sistema inglese.

A) In the civil law systems, so far as the law of contracts is concerned, labour law has contributed to making the distinction between Abschlussfreiheit and Gestaltungsfreiheit, between the formal regulation and the content of the agreement, between intention and judicial control, between initial regulation and mechanisms for adaptation of the individual contract (for instance, the direct effects of collective agreements).

Queste distinzioni are not commonly used in English legal practice: «the law of contract was developed by the courts, and the principal conceptual instruments which they handled were the intention of the parties (…) and public policy which, in a few extreme cases, may destroy a contract, but which cannot mould it» [86]. Nella law of contract inglese, si privilegia nell’evidente ottica prevalente della certezza del diritto, il senso letterale del contratto. Questa è probabilmente la ragione per cui il comportamento delle parti non viene evocato dalle disposizioni sull’inter­pretazione contenute nelle DCFR Model Rules[87] (il riferimento è all’art. 8:107 ff. of the second Book). Dai tempi di Kahn-Freund ad oggi, il diritto inglese è certo evoluto the courts «have created a special set of rules for the employment relation of mutual trust and confidence», ma resta ferma «the strong presumption (…) that the general rules of contract law apply equally to commercial contracts and employment contracts» sicché la logica degli emplied terms rappresenta a «small deviations from ordinary contract law» [88]. Nella qualificazione delle relazioni di lavoro come employment contract or self-employed contract, ad esempio, «the British approach remains distinct from that of most continental systems in the emphasis it gives to the autonomy of the contracting parties» [89].

Invero, for the economic analysis of law market freedoms are more efficient to provide security also for social aspirations. They have called this altogether Justice which has thus reduced to fair procedures.[90] This ideology which leaves aside the historical wisdom about the main functions of law as tamed social power and as a peace-keeping alternative to war (Hobbes)[91], still perhaps the most convincing argument for ordinary people to build up a unified European legal system, has been expressively made the basis of the DCFR. The DCFR starts with the following phrase: “1. The four principles. The four principles of freedom, security, justice and efficiency underlie the whole of the DCFR. Each has several aspects. Freedom is, for obvious reasons, comparatively more important in relation to contracts and unilateral undertakings and the obligations arising from them, but is not absent elsewhere. Security, justice and efficiency are equally important in all areas. …Law is a practical science. The idea of efficiency underlies a number of the model rules and they cannot be fully explained without reference to it.”

While law is basically defined as a restriction to freedom especially the freedom to pursue ones own interest through private force (Feud, self-help[92]) the DCFR assumes “that formal and procedural hurdles should be kept to a minimum.” (Principle 2) It further states in Principle 3 “As a rule, natural and legal persons should be free to decide whether or not to contract and with whom to contract. They should also be free to agree on the terms of their contract.” While classical codifications were cautious enough not to legislate the principle of freedom of contract the DCFR dares to formulate this not only as a principle but even as a rule in Art. II.-I:102 when it states “Parties are free to make a contract or other juridical act and to determine its contents”. This statement in the indicative form shows how deep neo-liberal model thinking is rooted in the minds of the authors of this draft. Mass unemployment, homelessness, overindebtedness, lack of drinking water and electricity, child labour, monopolies, adiposis, all kind of addictions but also imposed standard terms and longterm dependency just do not exist for the saint principle of freedom of contract. These are all exemptions which due to the exclusion of social contracts have not come into sight when this idealised principle was formulated.[93]

B) E’ tipica del diritto inglese anche l’affermazione secondo cui la promozione della solidarietà is «primarily the function of public law (…) rather than private law» [94]. Protective legislation was and is in English law «thought of nota as operating on a contract but as imposing extra-contractual obligations, enforceable through criminal prosecutions and through actions in tort» [95]. In tal modo non viene integrate nel diritto contrattuale una justice in Ansehung der Person come dimostra, infine, anche il fatto che nella outline edition, si scrive che «private law must contribute to the protection of human rights» ma non più, come nella interim edition [96], della «human dignity».

Anche la protezione degli interessi non patrimoniali della controparte non viene integrata dal DCFR nel diritto contrattuale generale, ma come nella tradizione inglese, evidentemente ascritta alla responsabilità extracontrattuale. Invero, gli obblighi da contatto sociale, che nella tradizione di civil law sono tradizionalmente considerati come accessori all’obbligo principale, potrebbero essere chiamati in gioco solo grazie alla norma del DCFR secondo cui «parties are free to make a contract or other juridical act and to determine its contents, subject to the rules on good faith and fair dealing and any other mandatory rules» [97]. Ma sarà una buona fede con «esprit de solidarite», come si prevede nell’Avant-project francese oppure una buona fede ordo-liberale a difesa della giustizia commutativa [98]?

La giustizia contrattuale prevista nel DCFR è essenzialmente una justice ohne Ansehung der Person come dimostra la generalizzazione del right not to be discriminated against[99].

Nutro, infine, molti dubbi sulla unmittelbare Drittwirkung che caratterizza la nuova figura del «contratto che contrasta con principi fondamentali»[100] – qualsiasi «principle recognised ad fundamental in the laws of the Member States of the European Union» –, che viene considerato nullo. Sono consapevole che a questa nuova categoria si collega la necessità di continuare ad operare, in relazione alle più svariate manifestazioni negoziali, anche giudizi di illiceità che venivano tradizionalmente ricondotti alla causa del contratto recisamente abbandonata nel contesto del diritto contrattuale europeo. Si pensi alla frode alla legge[101] tornata, per così dire, in auge con l’affermarsi del fenomeno della segmentazione delle organizzazioni imprenditoriali la quale richiede strumenti giuridici che riescano a leggere gli atti giuridici nel contesto di operazioni decisamente più complesse del passato.

L’espres­­sione principles indica, infatti, un enunciato normativo al quale viene attribuita comunemente un’influenza essenzialmente interpretativa dei disposti legislativi. Vero è che nei rapporti inter-privati i portatori d’interessi fondamentali sono (almeno) due e, quindi, è quasi sempre necessario operare un contemperamento tra principi fondamentali. Un’operazione che ha luogo in fase d’interpretazione della norma di diritto privato concretamente applicabile. Senza il filtro di quest’ul­tima si rischia di aprire la strada alla tirannia giudiziale di singoli principi costituzionali (see also retro § 3.2), operata attraverso un illimitato sindacato di illiceità.

5. Ignoring Labour contracts

Art. 1:101 of the DCFR stated that the rules are «not intended to be used, or used without modification or supplementation, in relation to rights and obligations of a public law nature, or in relation to», tra gli altri, «employment relationship». Art. 1:101 of the underlying Acquis principles adds that “they are not formulated to apply in the areas of labour law ….”

The rules are intended to be used in relation to service contracts [102]. The DCFR stessa non definisce cosa s’intenda per servizio. Essa si compone di una parte generale e di una specifica. Il criterio distintivo interno a quest’ultima non è poi incentrato sulle qualità del prestatore d’opera (e, quindi, ad esempio, sulla differenziazione tra contratto d’opera e d’appalto) ma, innovando, sulla tipologia di servizio: construction, processing, storage, design, information or advice and treatment. Complessivamente, analizzando le singole norme sui service contracts, si giunge comunque agevolmente alla conclusione che è stata privilegiata la regolamentazione dei profili che interferiscono con il contratto di compravendita[103].

The fact that employment relations are excluded from the scope of the code or from the principles does not imply that there is no interest of labour lawyers to be represented in these principles.

5.1. National Employment Law is more than the law of the contract of employment

«Employment relationship» is a new concept for EC law. Tuttavia, è facile presagire che sarà inteso come sinonimo di contract of employment. Both in the case of EC Regulation no. 593/2008 of 17 June 2008 on the law applicable to contractual obligations (Rome I) and in the case of Council Regulation (EC) No. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, the EC has not defined the meaning of «an individual employment contract». In general national courts and academic lawyers infer, by analogy with the Community concept of «worker», that must in its turn be interpreted autonomously and not by reference to national law [104].

The ECJ has developed a significant body of case law on the concept of «worker» for the purposes of art. 39 (48) of the EC Treaty (free movement of persons). With regard to the concept of worker, the leading case is Lawrie-Blum [105]. At para. 17 of the judgment, the ECJ set out the now classic definition of worker: «that concept [“a worker”] must be defined in accordance with the objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. The essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person, in return for which he receives remuneration». The real criterion used today by the ECJ is therefore the relationship of «subordination» [106]. According to the European tradition if a creditor retains the power of direction, the contract is without doubt a contract of employment. By contrast, the “contract for services” (o self-employment) in this legal tradition never gives the creditor a power of direction over the work activity.

Everywhere in Europe it is open for discussion the difference in treatment between self-employed and subordinate employee [107]. Simon Deakin takes the view that «the problem which vertical disintegration poses for labour law is not so much the growth of self-employment at the expense of protected forms of labour; rather it is the blurring of the “binary divide” itself. As the Supiot report recognized the growth of a “grey zone” of workers who are neither clearly employees nor self-employed affects all systems. (…) what is of particular interest is that the response has not taken the form of a de-socialization of the employment relationship. On the contrary, it is an attempt to extend the logic of social protection to certain forms of self-employment. » [108]

To extend the logic of social protection everywhere in Europe employment law divides today people up into – non come fa implicitamente the DCFR two but – three groups: a) employee, b) workers (England)/ employee like persons (Germany [109])/ para-subordinate (or -dependent) workers (Italy [110], France [111] and Spain [112])/dependent contractors (Sweden [113]) and c) the self-employed. In short everywhere in Europe there is a sort of middle category. In England it is «a statutory category which includes both employees and certain self-employed workers» [114], in Germany, Italy, France the middle statutory category includes only self-employed workers and replaced the personal subordination with a test based on the economic dependence of the worker on the enterprise [115]. Infine, il dibattito dottrinale europeo è attualmente polarizzato intorno alla proposta di Mark Freeland of «instantiation within labour law of a new conceptual category the “personal employment contract” which effaces the old binary divide» (employment and selfemployment reltionships) e che sia incentrata sul concetto di economic dependence [116].

In short, there are increasing numbers of commercial and civil contractual relations which are not labour contracts but fulfill the same functions for the creditor through other forms like for example contracts on independent labour or franchising contracts [117] etc. Contratti di lavoro autonomo o di commercializzazione dei prodotti in cui si riproduce the gap between forma e relazione di potere che si è storicamente prodotta nei rapporti di lavoro subordinato. Il criterio di escludere dal DCFR le sole «employment relationship» è troppo restrittivo. Esso riproduce the false binary devide between employment and self-employment.

Al contrario il DFCR avrebbe dovuto sviluppare nell’ambito del diritto privato, quella che Deakin la socialization di questi rapporti che assumono una crescente importanza per la realizzazione dei bisogni umani. Anche per rapporti di lavoro autonomo economicamente dipendenti, dovrebbe ad esempio il principio per cui «there must also be a time dimension in the decency of jobs. This refers to the sustainability of decent work» [118]. The time dimension può essere realizzata con misure di civil law (protection again dismissal) o of civil and public law (a decent job is “embedded” in an institutional network with the chances of quickly finding another decent job and/or enjoying proper social protection during the transition from one job to the other).

Abbiamo visto in precedenza come la disciplina nazionale dei social contracts abbia messo in discussione il dogma secondo cui l’obbligazione non può che avere carattere temporaneo (see § 4.3).

Un’evoluzione analoga dovrebbe ora essere prevista per i rapporti di lavoro autonomo che sono svolti in condizioni di dipendenza economica[119] . Nel DCFR si è scritto troppo frettolosamente che il committente di qualsiasi contratto avente ad oggetto prestazioni di servizi può recedere ad nutum[120]. Invero, ai sensi dell’art. 1:103 of DCFR «in exercising a right to terminate an obligation» deve essere rispettato the principale of good faith and fair dealing. Tuttavia, l’esperienza nazionale – in particolare quella tedesca – dimostra che questa clausola generale può al più essere evocata nel settore del lavoro subordinato dinnanzi ad una policy legislativa di restrizione dell’ambito di applicazione del diritto speciale di protezione contro i licenziamenti. [121]

5.2. The social dimension of the commercial contract between the agency and the user

A temporary work agency is any business which is licensed to hire out employees to other companies on a commercial basis. In base ai continental national laws, the commercial contract between the agency and the user deve contenere una serie di clausole a tutela dei terzi-lavoratori e quindi in Ansehung der Person of the employee.

In Italy Legislative decree No. 276 of September 10, 2003 [122] establish that leased workers are entitled during their assignments to receive pay ‘not inferior’ to that of the user firm’s employees with the corresponding job grade (tasks performed remaining equal) according to the collective agreement, both national and company-level, applied to the user firm. This entails complete parity of economic treatment between the user firm’s employees and the workers leased by the agency. Besides parity of economic treatment, the law also establishes parity of legal treatment between the employees of user firms and leased workers. This entails complete equality of entitlements (even if not expressly stated either by the law or bargaining) as regards, for example, working hours, job classifications, overtime and night-time work, holidays, leave, etc.

In Germany, the social clause in not so hard as in Italy. Temporary Employment Act (Arbeitnehmerüberlassungsgesetz, AÜG) [123] stipulates that agencies are obliged to guarantee their workers the same pay and employment conditions that hold for the permanent employees in the user enterprise. In contrast to the Italian model a deviation from the principle of equal treatment and equal pay for temporary agency workers is allowed if the employment contract refers to an existing collective agreement in the temporary work agency sector [124]. Moreover, if the temporary agency workers were previously unemployed and if they have never been employed by the agency before, the latter may also temporarily deviate from the equal treatment principle.

In Germany the significance of temporary agency work is still increasing [125]. Both the number of agencies and the number of temporary agency workers has grown since 2004 [126]. The equal treatment clause of the Temporary Employment Act, which provides the relevant regulatory framework, has led to the country-wide coverage of temporary agency work by three competing collective agreements. The agreements have allowed the agencies to deviate from the equal treatment clause. IG Metall has launched a campaign for the fair handling of Temporary agency work (Leiharbeit fair gestalten) with the aim of recruiting agency workers as members and enforcing equal treatment arrangements in collective and works agreements.

This is only one example di come la disciplina di un contratto commerciale debba tener conto della distributive justice.

6. Ignoring Consumer Credit Contracts

Consumer credit contracts uses foreign capital for individual needs. Without credit problems in transportation (car), education (student loans), housing (mortgages, furniture, appliances) or temporary illiquidity due to accidents or other unforeseen events or due to unemployment and loss of income would significantly threaten the well-being of consumers. Consumer credit transports individual labour income to where and when it is needed.

6.1. Consumer Credit in modern contract law

Making own future income available in an accumulated form has become one of the core conditions for being able to make an adequate use of once own labour. Individual protection in credit and housing are thus the logical continuation of labour protection concerned not only with the amount of income but also its availability for consumption. Industrialised societies have turned into credit societies, around 1987[127] in Europe while in North-America this emergence of consumer credit happened already in the 1960ties.

American consumer law books[128] have consequently concentrated on consumer credit and finance law and finally abandoned to teach outdated sales law remedies where extra-legal procedures where replacement has made traditional rights to repair and withdrawal in case of defective goods obsolete.

Since the 2008 Subprime Crisis consumer credit has also been recognised as a macro-economic basis of modern society defining the wellbeing of people in nearly the same intensity as labour and housing. It is even gradually replacing traditional rent and labour relations by providing job and housing opportunities in providing access to home ownership and independent labour. While on the surface this seems to have created independence and freedom which could have made labour and tenant protection superfluous it has in fact increased dependency shifting responsibility towards the credit sector and making social protection even more important in the law.[129]

In the UK but also Spain foreclosures have shown that banks have become factual landlords who can evict occupants when they are unable to pay. Independent labour is tied to the factual employer through credit and debt if the agent start with a loan from this company which has to be repaid out of the income from a highly regulated form of subordinated labour. Franchising systems have equally replaced labour through credit dependency.

An increasing amount of jurisprudence is now dedicated to credit issues[130] which has reached even the ECJ. The first consumer protection directive of the EU concerned consumer credit.[131] Now the provision of consumer credit is regulated at EU level in Directive 2008/48/EU and in the Directive on the Distant Marketing of Financial Services and covered in many others. But the core of its regulation concerning the lifetime of the contract and its possible effects is still regulated at national level where debtor’s protection has become a core concern of protection in consumer credit law.

Since the DCFR repeatedly claims to have built its rules onto the EU consumer acquis.(Intr. 12, 61, 63; Principles 9, 20, 46, 53, 59) and since it builds its claim to observe social justice onto the assumption that its foundations in consumer protection are a prove for its social mindedness in Principle 60 and repeted in many other parts of the DCFR. (Intr. 11; Principles 2, 6, 11, 40; 46)[132] one could have assumed that the most protective part of consumer law i.e. consumer credit and tenant law have been one of its foundations. But already the Acquis group was mandated to put together consumer law with the exception of financial services. Although in their explanation of the scope (Art. 1:101 (3) Acquis) consumer credit contracts are not exempted in fact their principles do not know the words loan, credit and debt, usury, default, early repayment, refinancing, exploitation, weakness, needs or similar notions. Instead the Acquis principles have created “disadvantaged consumers” (articles 2:203; 2:207; 2:208; 2:E01; 2:G01; 2:G02;2:G03 Acquis) whose sole problem is an information asymmetry which can be cured through additional information rights. The disadvantage is explained “because of the technical medium used for contracting, the physical distance between business and consumer, or the nature of the transaction”. (Art. 2:203 Acquis). Social disadvantages do not exist.

The DCFR expressively excludes in its Part F. on loan contracts (a) those under which a business lends to a consumer; and (b) those where the loan is made for the purchase or maintenance of immovable property. In addition the chapter on consumer leases excludes contracts where the parties have agreed that ownership will be transferred after a period with right of use even if the parties have described the contract as a lease. (Art. IV. B. – 1:101) and due to its restriction to goods as “corporeal movables” (Defintions) also housing. Rent of immovable property rights is only mentioned with regard to a right of withdrawal if concluded at outside the business premises. Although rent contracts for homes are not covered the principles make clear that their general rules also applies in this field when in principle 18 they argue that the visitor of a tenant cannot get damages under contract law. Thus the Draft shows that social rights of tenants which protect their social environment and the integrity of their homes (Schutzpflichten zugunsten Dritter) are even excluded by a Draft law which claims not to regulate landlord – tenants relation.

6.2. The asocial concept of Consumer Protection

This indirect regulation is also true for consumer credit. One of the core elements of consumer credit law is the idea of consumer protection which in Germany the supreme court as well as the constitutional court have called a constitutional principle especially with regard to the situation of debtors. In the discussion between an informational approach and a social approach in consumer protection where market conform and market compensatory, informational and social, formal and substantive consumer protection are juxtaposed, the Draft expressively excludes all allusions to social approaches in consumer protection.[133] In so far the Draft takes sides with the neo-liberal reduction of consumer protection to asymmetric information problems excluding the traditional debtors’ protection as well as question of basic needs, health and access from the realm of consumer law. This has as the reductionist approach in Directive 2008/48/EC has shown an important impact on social policy in the EU which is thus gradually replaced by market mechanisms.

While the roots of social consumer protection all lie in the principle of “good morals” or “unconscionability”, “ordre public” and “usury” which have historically served as the demarcation line for the asocial outcome of an unlimited freedom of contract the DCFR instead subscribes to the procedural concept of “fairness” and calls “usury” just “unfair exploitation”. It still reminds of its origins when it addresses elements of social policy when referring to “economic distress and urgent needs”. But it turns the principle upside down when it converts it into a tort where the interdiction of such behaviour depends on the fact that this weakness has been “knowingly” “exploited … by taking an excessive benefit or grossly unfair advantage.”(II.-7:207) Not the weak person needs protection. The wealthy person is punished for “unfair behaviour”. The same has happened to the principle of good faith. While it had been a means to achieve morally and ethically acceptable outcomes the DCFR turns it into a mere procedural concept of fair dealing:

I. – 1:103: Good faith and fair dealing (1) The expression “good faith and fair dealing” refers to a standard of conduct characterised by honesty, openness and consideration for the interests of the other party to the transaction or relationship in question.

The moral dimension of social responsibility is thus excluded. The difference between unconscionable behaviour and protection of the weak has been thoroughly elaborated and discussed in German jurisprudence when distinguishing between the outdated article on individual exploiation (Article 138 (2)) which has now literally been taken up in the DCFR (= II.-7:207)) and the new principle of “social exploitation” out of “good morals” in Article 138 (1) BGB[134] similar to ordre public in French law which the Draft both omits. With a decision of the constitutional court concerning unconscionable spouses guarantees this view in contract law has even got constitutional acknowledgement. Instead the Draft leaves this out and opts for efficiency. It is exactly this principle of efficiency which has been used by neo-liberals against usury protection and responsible credit. Rate ceilings as developed out of “good morals” in Germany are viewed as “ineffective” since they are said to restrict offers to vulnerable consumers on the market. The efficiency theory argues that rate ceilings will inevitably lead to the exclusion of the poor from credit as well as jobs and homes. Empirical evidence reveals instead that countries like the UK and America without significant rate ceilings, minimum wages or rent limitations and any other social consumer protection have the highest exclusion rates among industrialised nations while Germany and especially France with a significant system of rate ceilings (taux d’usure, Wuchergrenze), minimum wages (SMIC, Mindestlohn) and rent limitations (Vergleichsmiete) face much less social exclusion.

The consumer model of the DCFR builds its claim to consumer protection onto a concept in which consumption does not play a role at all. While consumption is a process where human needs for reproduction are satisfied by using (not acquiring) products and services its focus on the informational model (Principles 7,8,9) and the rational buyer (Rule I. – 1:104) excludes a view onto needs and social policy issues. Consequently a consumer is not who consumes but who lacks commercial interest in the transaction (Rule I. – 1:105). This concept is designed to further competition and rational choice. Whether they suffice to protect the social interest of consumers as borrowers or tenants is more than questionable. Because the definition of consumer protection in the DCFR has been developed without taking into account the present state of social policy interventions into markets and also neglected any form of collective protection of workers and consumers it can pretend to care for weaker parties. But this is only by definition and model thinking. A millionaire buying goods from a small business is indeed technically the weaker party. But this does not prove that the DCFR provides a basis for social consumer protection rules which are dominant in national consumer credit and tenant law.

This tenedency becomes all clear when analysing the strange emphasis this draft has laid onto the right of withdrawal. (Intr. 29, 62; Principle 20; Rules III. – 5:106 III. – 5:118 46; II. – 5:101-106; II. – 5:201;II. – 9:410; VII. – 7:101;II. 3- :103; II. – 3:106; II. – 5:104-105III. – 5:118 II. – 5:201; II. – 3:109; II.– 5:105-106; II. – 5:201; II. – 5:102-104;II.– 3:102-103; II. – 3:105-106; II. – 5:105; II. – 5:106; II. – 5:102-103;II. – 5:105;II. – 3:104) This feature has been developed into one of the main pillars of its consumer approach. This is all the more astonishing as such rights exist for a long time already but there is no empirical evidence that they have had any considerable impact on consumers and markets in the past. Especially in consumer credit it has remained unused.

Its merits are more ideological than practical and especially not social. The right of withdrawal nourishes the assumption that rational choice would solve most consumer problems because the market already offers adequate solutions which only have to be found and selected rationally in due time. But in consumer credit like in labour and tenant law neither adequate products (affordable and accessible responsible credit, job offers, affordable homes) nor sufficient access do exist for those who need the protection of the law. Problems that arise after conclusion of the contract are seldom a function of foreseeable events which could have been evaded by rational choice.

On the contrary. The right of withdrawal helps to monopolise such offers with the wealthy while for the less fortunate the choice remains limited which again creates exploitation of need and lack of access by poor quality and high prices called “risk based pricing.” Social policy in the EU concentrated at DG Social Policy where DG SANCO could easily have asked for cooperation since it renounced to deal with overindebtedness and handed it over to this Department in 2000. Also the enormous amount of anti-usury rules in national law which are not concentrated in the excluded area of consumer credit but in general contract law have also been ignored in this Draft.[135]

Its claim to exclude consumer credit does therefore not justify the omission of the general principles of debtors’ protection for money claims which are the core of social consumer protection in consumer credit and tenant law. Absolute rate ceilings, relative ceilings, restrictions on pricing and offers under unfair exploitation and unfair competition, administrative restrictions, regulated default interest rates, restrictions on penalties and fees, rules for interest compounding and limitations for variable rates together with restrictions on lending and borrowing through admission and supervision or restrictions on garnishment and the development of personal bankruptcy are part of a vast system which has modernised the ancient rules on usury and exploitation.[136] With neglect of social rights of tenants and debtors to be saved from the immidiate consequence of income problems the DCFR states under III. – 3:301: Enforcement of monetary obligations (1) The creditor is entitled to recover money payment of which is due. A European contract law which does not even mention price regulations, protection against acceleration of debts or unilateral early termination of rent, labour and credit contracts disregards the importance public interest has gained in modern contract law and reflects the state of the 19th century. It will not be able to convince people that unification is a valuable goal.

6.3. The Impact for General Contract Law

If consumer and debtors’ protection are excluded together with consumer credit, labour and tenancy law there is no place left for social contracts within a future contract code. ut already in Principle 16 we recognised that the authors do not want to omit these contractual areas in general but only their social protective parts. In so far general contract law shall apply.

This is also true if we analyse the technical modernity of the loan regulation. The DCFR defines a loan as a contract by which one party, the lender, is obliged to provide the other party, the borrower, with credit of any amount for a definite or indefinite period (the loan period), in the form of a monetary loan or of an overdraft facility and by which the borrower is obliged to repay the money obtained under the credit, whether or not the borrower is obliged to pay interest or any other kind of remuneration the parties have agreed upon.

This definition keeps consumer credit away from the other social contracts by using an outdated definition (see the old Article 607 BGB abandoned in 2002) in which the main obligation of the creditor is to provide the borrower with credit for the amount, in the manner and for the period determinable from the contract. (IV.F. – 1:102). Instead in labour and tenant law the obligation is to make the use of the labour force as well as of the leased good available to the other party and keep it in a usable form. Although the Draft even does not recognise this elements in its definition of the lease of goods (IV. B. – 1:101) guaranteeing the use of an item is one of the core elements which have historically marked the obligations of the lessor.

The misunderstanding of credit as a spot contract wherein money is exchanged with money (pay and repay) has been abandoned already in Directive 87/104/EEC and now in Article 3 Directive 2008/48/EC. The return to an outdated definition threatens the core element of social contracts: lifetime. In social contracts concerning labour, tenant and consumer credit creditors and debtors have to deal with human life time which again is dependent on needs and social circumstances.[137] If time only seen as accessory the social dimension has no place to anchor in the heart of the contractual relatino, the genetic synallagma.

Already in the French civil code loans are divided into loans for use which would be called a lease and loans for consumption (Art. 1874 CC) which include money loans. (Art. 1895) In both instances the lender has to guarantee the use. According to Art. 1891 which is applicable to both forms of a loan (Art. 1898) the lender has also the obligation to protect the borrower from such defects that it may cause harm to the person who uses it, … where he knew of the defects and did not warn the borrower.”

Thus the French law already developed the renting of labour and things into the use of money which offers the basis for what in this essay is called a social contract. But the deviating defintion in the DCFR relates to old German law which again took up a distinction in Roman law between money lending and renting of other things. While labour contracts and rent contracts were mutual contracts already in Byzantine and Roman law (locatio conductio operarum and rei) “renting” money was seen as a form of usury.[138] This is why loan contracts (Darlehen, mutuum, prêt, prestito) were contracts with unilateral obligations only. In Roman law interest was not due unless it was stipulated in a separate contract[139] a rule which is still visible in French law (see Art. 1905 ff) The Code reflects the restrictions on interest when it says in Art. 1907: “Interest is statutory or conventional. Statutory interest is fixed by statute. Conventional interest may exceed statutory interest whenever a statute does not so prohibit.”

These restrictions still reflect today that interest just as rent or wages are not a mere reflection of the synallagma but depend on other factors which especially reflect its social dimension which contains restrictions enumerated above.

Instead the DCFR creates the obligation of paying interest independently from the contractual synallagma and even creates and automatism.

IV.F. – 1:104: Interest (1) The borrower is obliged to pay interest or any other kind of remuneration according to the terms of the contract. (2) If the contract does not specify the interest payable, interest is payable unless both parties are consumers.

It even aggravates the situation for the borrower with respect to national law when it creates certain assumptions like

(3) Interest accrues day by day from the date the borrower takes up the monetary loan or makes use of the overdraft facility but is payable at the end of the loan period or annually, whichever occurs earlier.

The DCFR even abandons the historical principle of anatocism which prevails in most continental jurisdictions. (see Art. 248, 289 BGB[140]; Art. 1154 and 1155 Code Civil; Art. 1283 Codice Civile[141])

(4) Interest payable according to the preceding paragraph is added to the outstanding capital every 12 months.

These are only randomly selected examples how this Code will affect the system of consumer credit regulation in Europe.

6.4. The Failure to provide answers for responsible credit

The DCFR is loquacious in so far it regulates new forms of contracts important for some areas of the economy but not for consumers. It also goes into detail where for example duties of borrowers are defined (1) Where the credit takes the form of a monetary loan, the borrower is obliged to take up the loan in the manner and for the period determinable from the contract. (2) If the time the borrower is to take up the loan is not determinable from the contract, the borrower is obliged to take up the loan a reasonable time after the lender’s demand.(IV.F. – 1:103: )

But with respect to issues concerning social contracts the DCFR is tacit. We would like to demonstrate this with respect to the principles of responsible credit which the international coalition for responsible credit has developed world wide in order to create a system of adequate consumer credit regulation. The DCFR does not even match with one of its obligations and fails to address even those social problems and situations which have already got attention within national regulation.[142]

The first principle of responsible credit states: Responsible and affordable credit must be provided for all It concludes that banks should not discriminate and should provide real access to credit and be supervised. While the DCFR has anti-discrimination rules none of these rules touch on the core problem of discrimination in credit relations which is the social discrimination for existing debt or a lack of liquid assets and income.

The second principles requires that credit relations have to be transparent and understandable. The DCFR so proud of its informational consumer protection model is astonishingly tacit on this matter. The principles enumerate several instruments: the “one-price” disclosure which in consumer credit would require an APRC which covers all cost including those of annexed services and a social transparency in which the burden derived from the obligation is made visible with respect to the future income.

Further effective reflection time is required which would need a binding offer instead of right of withdrawal whose execution is hindered by the duty to repay since it is only effective after the credit has already been received.

The fourth element of this principle, independent advice, is only granted once in the Draft namely to a security provider in order to protect himself from a borrower’s and not from a creditor’s behaviour (Art. IV. G. – 4:103 (3)).

An obligation of seeking advice is imposed onto investment agencies if they have been entrusted but lack the necessary professional skills. (X. – 6:107 1 b))

The duty of advice is the core element of effective consumer protection in the informational model. Its omission takes the credibility from its legitimacy. Ordinary consumers do not use blank information but have to get them transformed into a usable form through advice. But the Draft who see such necessities only in the special case of wealthy investors provides rights and duties only for those who already enjoyed advice. In this case a strict regime of liability has been introduced. (VI. – 2:207).

The third principle requires what has been called responsible lending: Lending has at all times to be cautious, responsible and fair. In this principle the credit and its servicing must be productive for the borrower. No lender should be allowed to exploit the weakness, need or naivety of borrowers. Early repayment, without penalty, must be possible. The conditions under which consumers can refinance or reschedule their debt should be regulated.

The Draft instead has much regard for the rights of the creditor in default, for early repayment but lacks any interest for those who have problems to repay their debts.

Principle 4 contains one of the core elements of social contracts: Adaptation should be preferred to credit cancellation and destruction. There is a need for effective protection against unfair credit cancellation. Default charges should be adequate to cover losses only.

The Draft contains something which could be labeled as form of the clausula rebus sic stantibus which have been used in the history of long term relations to adapt contractual duties to changing living conditions in old age pensions or in case of divorce. Instead the Draft again reduces this right of the weaker party to money claims in which the duty of the debtor becomes so onerous because of an exceptional change of circumstances that it would be manifestly unjust to hold the debtor to the obligatio. The word “adaptation” is then used also for filling holes in cases of misunderstand. (II. – 7:203) While the clausula rebus sic stantibus starting with cases of high inflation has been developed into a whole system of remedies, workers, tenants and borrowers can use to adapt social contracts to the requirements of their lives the DCFR has reduced it to a quantitative adaptation in cases of error.

With respect to principle 5 that Protective legislation has to be effective i.e. cover all non-commercial users, all commercial forms of credit provision, the whole process of credit extension as experienced by its users and encourage efficient social and economic effects of credit extension nothing can be found in this law although the authors claim to build their system on consumer protection. It is common ground that real consumers have difficulties to enforce their right, that in social contracts collective elements like class actions or representation by collective organisations is necessary. At least the principles should have shown that the way the rights have been formulated and the duties to sue have been distributed between suppliers and consumers have reflected their ability to use the legal system. Protection of the weaker parties in social contracts has been managed primarily by the court system with a redistribution of the duties to provide evidence and a limitiation of possibilities to out-of-court enforcement remedies for suppliers, landlords and employers.

The sixth principle that Overindebtedness should be a public concern. is neglected in the same way as unemployment and homelessness are not considered to be worthwhile mentioning in a European civil code of the future.

The same is true for the effectiveness of redress mechanisms which should be offered to the weaker parties in a contractual system. Principle 7: Borrowers must have adequate means to defend their rights and be free to voice their concerns requires adequate individual as well as collective legal procedures to enforce borrowers’ rights and means to create public concern and awareness for a fair and responsible distribution of credit.

7. Conclusion

If the DCFR – as it was orginally the case with the German BGB – is only functional with the logique of the market and not orientated at protecting the personality of the debtor and his or her lifetime the logic of social contracts like labour contracts, tenancy and consumer credit contracts will have difficulty to resist to the pressure for deregulation. If Martin Hesselink is right when he states in his expertise for the European parliament in § 2.3 that «the CFR could become a model law for legislators across Europe»[143] we should not hesitate to complete this Draft who presently is not much more than a European Sales Law based on a special and questionable form of informational consumer protection where the market is supposed to provide all solutions social problems can cause.

Lawyers especially in the civil law countries using especially those languages in which their social system has been developed, defined and morally underpinned should start a joint endeavour to formulate a second DCFR, the Draft Common Frame of Reference for a European Social Contract law covering long term contracts in labour, housing, credit and consumption. This law whould have to focus on the lifetime of contracts more than on its concludion, provide means of adaptation instead of resiliation, protect human beings against market mechanisms which ignore the changes in life and their social environment.

For this task the research team will have to show quite different skills and abilities like sociological inside, historical and cultural wisdom, social mindedness and experience with collective elements in the law. Trade unions, consumer and tenants organisations as well as those political parties which support a social responsibility of the market economy should guarantee that such process can be started and the pressure of a quick and one-sided economic integration of the common market does not favour a blind implementation of the present Draft.

[1] For references to the text of the DCFR and the Acquis we have used the 2009 edition of the Principles, Definitions and Model Rules of European Private Law DCFR. Outline Edition February 2009. VI as available at http://www.storme.be/2009_02_DCFR_OutlineEdition.pdf. For the Acquis we have used “Principles of the Existing EC Contract Law (Acquis Principles) – Contract II:by the Research Group on the Existing EC Private Law (Acquis Group), Munich 2009: as available at http://www.acquis-group.org/

[2] Horst Eidenmüller, Florian Faust, Hans Christoph Grigoleit, Nils Jansen, Gerhard Wagner, Reinhard Zimmermann The Common Frame of Reference for European Private Law—Policy Choices and Codification Problems Oxford Journal of Legal Studies, Vol. 28, No. 4 (2008), pp. 659–708; as far as the underlying Acquis in consumer law is concerned in: Nils Jansen, Reinhard Zimmermann Restating the Acquis Communautaire? A Critical Examination of the ‘Principles of the Existing EC Contract Law’ 4 The Modern Law Review (2008) 4,71) pp 205 ff

[3] Horst Eidenmueller, Florian Faust, Hans Christoph Grigoleit, Nils Jansen, Gerhard Wagner and Reinhard Zimmermann, ‘DCFR for European Private Law— Policy Choices and Codification Problems’ Oxford Journal of Legal Studies Vol. 28, No. 4, 2008, 659 ff; Thomas Wilhelmsson, ‘Constitutional values and social justice’, presentation at the ERA conference ‘The Draft Common Frame of Reference’ (Trier, 6-7 March 2008) (available at www.era.int); Nils Jansen, Reinhard Zimmermann Restating the Acquis Communautaire? ACritical Examination of the ‘Principles of the Existing EC Contract Law’ Modern Law Review (2008) 71(4) 505-534

[4] G. Cornu,‘Un code civil n’est pas un instrument communautaire’ D 2002 chron, 351; Y. Lequette, ‘Quelques remarques a’ propos du projet de code civil europeL en deM. von Bar’D2002 chron, 2202; P.Malinvaud,‘Réponse hors délai à la Commission européenne à propos d’un code européen de contrats D 2002 chron, 2542.

[5] The Critique of the Study Group on Social Justice in European Law (Manifesto Group) has been expressed in ‘Social Justice in European Contract Law: a Manifesto’, 16 European Law Journal (2004), 653-674. Collins Hugh Collins, ‘European Private Law and Cultural dentity of States’, ERPL (1995), 353-365; Ruth Sefton-Green, ‘Cultural Diversity and the Idea of a European Civil Code’, in: Martijn W. Hesselink (ed.), The Politics of a European Civil Code (The Hague: Kluwer Law International, 2006), 71-88. For its rejection see especially See e.g. Pierre Legrand, ‘Against a European Civil Code’, 60 MLR (1997), 44-62 and Pierre Legrand, ‘A Diabolical Idea’, in: A.S. Hartkamp et al. (eds.), Towards a European Civil Code (The Hague, London, New York: Kluwer Law International, 2004), 245-272.

[6] see for an overview on critical voices Martijn Hesselink, The Values underlying the Draft Common Frame of Reference: What role for Fairness and “Social Justice”, Study for the European Parliament 2008 PE 408 312 IP/A/IMCO/ST/2008-11 – IP/C/JURI/FWC/2006-211/Lot3/C1/SC2. See further Thomas Wilhelmsson, Varieties of Welfarism in European Contract Law, European Law Journal, Vol. 10, No. 6, November 2004, pp. 712–733; Thomas Wilhelmsson, Social Contract Law and European Integration (Dartmouth: Aldershot, 1995); Thomas Wilhelmsson, ‘Constitutional values and social justice’, presentation at the ERA conference ‘The Draft Common Frame of Reference’ (Trier, 6-7 March 2008) (available at www.era.int); Brigitta Lurger, Vertragliche Solidarität, Entwicklungschancen für das allgemeine Vertragsrecht in Österreich und in der Europäischen Union (Baden-Baden: Nomos, 1998); Brigitta Lurger, Grundfragen der Vereinheitlichung des Vertragsrechts in der Europäischen Union (Vienna, New York: Springer, 2002); Jan B.M. Vranken, ‘Over partijautonomie, contractsvrijheid en de grondslag van gebondenheid in het verbintenissenrecht’, in: J.M. Barendrecht, M.A.B. Chao-Duivis and H.A.W. Vermeulen (eds.), Beginselen van contractenrecht: Opstellen aangeboden aan B.W.M. Nieskens-Isphording (Deventer: Kluwer, 2000); Christophe Jamin, ‘Plaidoyer pour le solidarisme contractuel’, in: Gilles Goubeaux et al. (ed.), Études offertes à Jacques Ghestin; Le contrat au début du XXIe siècle (Paris: LGDJ, 2001); Alessandro Somma, ‘Social Justice and the Market in European Contract Law’, 2 ERCL (2006), 181-198, 184.; Guido Alpa, Trattato di diritto civile, Vol. I Storia, fonti, interpretazione (Milan: Giuffrè, 2000), 604 ff; Denis Mazeaud, ‘Loyauté, solidarité, fraternité’, Mélanges Terré (1999), 603; Brigitta Lurger, ‘The Common Frame of Reference/Optional Code and the Various Understandings of Social Justice in Europe’, in: T. Wilhelmsson, E. Paunio, A. Pohjolainen (eds.), Private Law and the Many Cultures of Europe (Alphen a/d Rijn: Kluwer Law International, 2007), 177 ff;; Hans W. Micklitz, From Social Justice to Access Justice : the European Challenge, EUI LAW WP 00/2008 199, 184; Luca Nogler, Udo Reifner Lifetime Contracts – Rediscovering the Social Dimension of the Sales Contract Model, Jubilee Thomas Wilhelmsson Helsinki October 2009; Luca Nogler, Udo Reifner, Der menschliche Makel – Principles of European Contract Law zwischen Merkantil- und Dienstleistungsgesellschaft, in: Thomas Dieterich, Katsutoshi Kezuka, Martine LeFriant, Luca Nogler, Heide Pfarr, Festschrift Ulrich Zachert, Baden-Baden 2009 pp 54-74; Luca Nogler “Why Do Labour Lawyers Ignore the Question of Social Justice in European Contract Law?” European Law Journal vol 14 (2008) n. 4 pp 500-502(3) with comments by Udo Reifner and Thomas Wilhelmsson; Udo Reifner Verbraucherschutz und Neo-Liberalismus – DCFR, Verbraucherrichtlinien und die Kritik Stürners, Verbraucher und Recht H.1 (2009) pp 5-14

[7] European Parliament Contract no. IP/C/JURI/FWC/2006-211/LOT3/C1/SC2 implementing the framework service contract no. IP/C/JURI/FWC/2006-211/LOT3/C1, on the “values underlying the draft common frame of reference: what role for fairness and ‘social justice’?”

[8] Martijn Hesselink, The Values underlying the Draft Common Frame of Reference: What role for Fairness and “Social Justice”, Study for the European Parliament 2008 PE 408 312 IP/A/IMCO/ST/2008-11 –

[9] see below at FN at

[10] sharing , associated, allied, partner, comrade, associate, ally. in German Bundesgenosse;Gefährte, gemeinsam, Genosse, verbündet

[11] see Max Weber, Wirtschaft und Gesellschaft: Grundriss der verstehenden Soziologie. 1956 p 191

[12] This is also true for the Manifesto and especially valid for the expertise delivered by Hesselink which ignores the relation between social justice and social policy totally and gives several contradicting vague definitions when he always refers to the criteria of social justice but accepts the definition which the European Parliament put forward in the research with the question: “Does the DCFR perceive contract law only as a tool for regulating private law relations between equally strong parties or does it contain elements of ‘social justice’ in favour of consumers, victims of discrimination, small and medium sized enterprises and other possibly weaker parties to contracts?” (Hesselink 2008 p 6) Athough Hesselink, himself a member of the Social Justice Group points to a social policy approach of this group when he argues that the group was inspired by the lack of concern of the Commission “how citizens obtain the satisfaction of their basic needs (think of education, health, utilities, pensions, communication and travel)” his own definition does not take up anything of this approach but first uses “social justice” already as a known category when describing legal developments and European contract law while defining it later in the rather poor way and even wants the CFR to pass a “social justice test”. (p 19) He then (p 21) enumerates five elements that should constitute what “social justice” would mean in a test obviously derived from Habermas and Rawls theory: 1. democracy (addressee should be author of a rule) 2. Protection of the weaker party (asymmetric power) 3. both “ideologies” (liberal and socialist) should be represented 4. individual justice (freedom for the judge to adapt general rules to specific problems) 5. General Principles reflecting the European values should be allowed to be used in the interpretation of the Law. Four elements (1, 3-5) tell us how social justice should be entered into rules, the one which describes it reduces it to the conservative notion of almony (protection of the weak) but not in a social sense where real life problems as enumerated above play a role but where the real person is already the “party of the contract” and shows a specific “contractual weakness”. In total the typical combination of the informational model in consumer protection where paternalistic care is combined with a reductionist view of consumer problems as asymmetric information and decision making has now become the core test for social policy in private law. See already Brigitta Lurger, ‘The Common Frame of Reference/Optional Code and the Various Understandings of Social Justice in Europe’, in: T. Wilhelmsson, E. Paunio, A. Pohjolainen (eds.), Private Law and the Many Cultures of Europe (Alphen a/d Rijn: Kluwer Law International, 2007), 177- 199;

[13] See the 1947 Social Policy (Non-Metropolitan Territories) Convention (ILO C82) to the EU; European Social Charta 1961,1996; the activities of DG Social Policy as well as the activities of national ministries of Labour and Social Affairs.

[14] Luca Nogler, Udo Reifner Lifetime Contracts – Rediscovering the Social Dimension of the Sales Contract Model, Jubilee Thomas Wilhelmsson Helsinki 2009

[15] Udo Reifner, Renting a Slave – European Contract Law in the Credit Society in: Wilhelmsson, Th. et alt. (Ed.) Private Law and the Cultures of Europe, Kluwer Law International, The Netherlands 2007 pp. 325-342

[16] A group of such lawyers has met in Trento in September 2009 to develop principles of European contract code EuSoCo. (See www.eusoco.eu)

[17] Luca Nogler, Udo Reifner Lifetime Contracts – Rediscovering the Social Dimension of the Sales Contract Model, Jubilee Thomas Wilhelmsson Helsinki October 2009

[18] Udo Reifner, The Lost Penny – Social Contract Law and Market Economy in: Wilhemsson , Th./Hurri, S. (Eds) From Dissonance to Sense: Welfare State Expectations, Privatization and Private Law, Ashgate:Dartmouth S. 117 – 175; Udo Reifner The Vikings and the Romans – Contract Law and Social Economy, in: Wilhelmsson (Ed) Perspectives of Critical Contract Law, Dartmouth Publishing company, Brookfield (Vt) 1993 pp 171 ff

[19] Luca Nogler Why Do Labour Lawyers Ignore the Question of Social Justice in European Contract Law? European Law Journal vol 14 (2008) n. 4 pp 500-502.

[20] Hugh Collins, European Social Policy and Contract Law, ERCL 1/2005, 115 ff; Hugh Collins, `Justifying European Employment Law’, in S. Grundmann, W. Kerber, S. Weatherill (eds), Party Autonomy and the Role of Information in the Internal Market (Berlin: de Gruyter, 2001) 205. S. Deakin, ‘Labour Law as Market Regulation: The Economic Foundations of European Social Policy’, in P. Davies, A. Lyon-Caen, S. Sciarra, S. Simitis (eds), European Community labour Law: Principles and Perspectives (Oxford: Oxford University Press, (1996) 63.

[21] Fritz Scharpf The European Social Model: Coping with the Challenges of Diversity JCMS 2002 Vol. 40 No 4 pp 645-670

[22] C. von Bar,‘Die Study Group on a European Civil Code’ in Festschrift für Dieter Henrich (Bielefeld: Gieseking, 2000) 1; W. Wurmnest, ‘Common Core, Kodifikationsentwürfe, Acquis-Grundsätze Ansätze von internationalen Wissenschaftlergruppen zur Privatrechtsvereinheitlichung in Europa’ (2003) 11 Zeitschrift für Europäisches Privantrecht 714, 732,735.

[23] For a European Contract Code see Parliament Resolution A2-157/89 [1989] OJ C158/400; Resolution A3-0329/94 [1994] OJ C205/518; see also, from 2000, Resolutions B5-0228, 0229 and 0230/2000 [2000] OJ C377/323; the ¢rst two resolutions; for the Commission see Communication from the Commission to the Council and the European Parliament on European Contract Law COM(2001) 398 final (11 July 2001); see (2001) 9 Zeitschrift für Europäisches Privatrecht 963. (1993) 1 613; (1995) 3, 669. For a Common Frame of Reference see Resolution of the Communication from the Commission to the European Parliament and the Council,‘European Contract Law and the revision of the acquis: the way forward’ COM(2004) 651 final (11October 2004)

[24] Action Plan COM (2003) final, OJ C 63/1 even further reduced in Communication from the Commission to the European Parliament and the Council,‘European Contract Law and the revision of the acquis: the way forward’ COM(2004) 651 final (11October 2004);

[25] For this essay we use the latest available publication of the DCFR: v. Bar, Chr./Clive, E./Schulte-Nölke, H. (eds) Principles, Definitions and Model Rules of European Private Law – Draft Common Frame of Reference (DCFR) Outline Edition Prepared by the Study Group on a European Civil Code and the Research Group on EC Private Law (Acquis Group) Based in part on a revised version of the Principles of European Contract Law (further members of the group Hugh Beale, Johnny Herre, Jérôme Huet, Matthias Storme, Stephen Swann, Paul Varul, Anna Veneziano and Fryderyk Zoll) Munich: Sellier 2009

[26] for example Directive 2008/48/EC on Consumer Credit, Directives on Payment Services, on Distance Marketing of Financial Services, Investment Direcitive, MiFiD etc concerning financial services.

[27] The assumption that the existing Directives on labour law (see Collins H, European Social Policy and Contract Law ERCL 1/2005, 115 ff) are outside the area of consumer law is erroneous since there is a rising consensus in European labour law that a worker relation can also be addressed by consumer legislation which on the contrary qualifies consumers also as subjects in labour law. (see for example consumer credit for inedependent labour; the sales of goods for

[28] Because tenant law was the first form of consumer law providing protection within a special service to consumers (renting a car is part of consumer law, renting a house not?) there is no reason to exclude it from the general body of consumer law today. (see i.e. Krummennacher, P. Konsumentenleasing : zur Anwendbarkeit des Konsumkreditgesetzes und zwingender Bestimmungen des Mietrechts auf Konsumentenleasingverträge Zürich: Schulthess, 2007

[29] This is not taken into account in Stephen Weatherill, ‘The Constitutional Competence of the EU to Deliver Social Justice’, 2 ERCL (2006), 136-158; Hesselink 2008 p 16

[30] Luca Nogler, Udo Reifner, Lifetime Contracts – Rediscovering the Social Dimension of the Sales Contract Mode, under 2.1 with further references

[31] Thomas Wilhelmsson, The Average Consumer : a Legal Fiction? in Thomas Wilhelmsson /Pohjolainen Paunio, (Eds) Private Law and the Many Cultures of Europe, Kluwer 2007 pp 243 ff; for a general critique in economic science see Udo Reifner, Die Geldgesellschaft, Wiesbaden: VS-Verlag 2010

[32] This proposals integrates Sale of consumer goods and guarantees (99/44/EC); Unfair contract terms (93/13/EC); Distance selling (97/7/EC); Doorstep selling (85/577/EC)

[33] The word collective is used only in FN 40 to describe the way the authors worked together. For the different forms collective interest take within social contract law see Udo Reifner Inclusive Contract Law – Poverty in Common and Civil Law, Hamburg/New York 2000 pp 44 ff (http://www.verantwortliche-kreditvergabe.net/media.php?t=media&f=file&id=2486); Udo Reifner, Zur Zukunft des europäischen Verbraucherrechts – Soziales Dauerschuldverhältnisse in der Kreditgesellschaft, Verbraucher und Recht (22. Jg.) Sonderheft 20 Jahre iff pp 1, 30f

[34] An incorrect subjective limitation of Geschäftsführung ohne Auftrag/ gestion d’aiffaires d’autrui which now must be “benevolent” instead of objectively required by a moral or legal obligation of the manger (Geschäftsherr).

[35] Continental, Scandinavian and Anglosaxon Model: For this see Scharpf. F.

[36] See the critique of labour lawyers of the role the highest German labour court took against collective actions of trade unions in Germany by Kahn-Freund, Das Sozialideal des Reichsarbeitsgerichts, ; Däubler, Das Sozialideal des Bundesarbeitsgerichts. Similar has been recently formulated by Derleder Kritische Justiz with respect to the Jurisprudence of the Banking Senate of the German Supreme Court in Consumer Credit matters.

[37] for Germany see Rüthers, B. Die unbegrenzte Auslegung, ; Reifner, Das Recht des Unrechtssstaates, Franfurt/Main: Campus 1991

[38] See the Motive zu dem Entwurfe eines bürgerlichen Gesetzbuches für das Deutsche Reich. Amtliche Ausgabe. Bd. 1–5, Berlin/Leipzig 1888.

[39] Ruth Sefton-Green, ‘The CFR and the Preservation of Cultural and Linguistic Plurality’, paper presented at the SECOLA 2008 conference (forthcoming in ERCL).

[40] The editors have gained special reputation in English and American international and private law: Main editors: Christian von Bar (Cambridge 1981 and Oxford 2000); Eric Clive (Edinburg); Hans Schulte-Nölke (Visiting Senior Researcher in an English programme at the University of Nijmegen, Netherlands). Other editors Hugh Beale (UK), Johnny Herr (Stockhom Business School with its English language BA PHD programme). Jérôme Huet was trained as a Visiting Professor at the University of Tulane, New Orleans, United States (1988-1990), Paul Varul is a business lawyer from an international business law firm in Estonia, Anna Veneziano got her Master Degree from Yale School, USA and Fryderyk Zoll at Jagiellonian University with its American Law cooperation with its School of American Law (Columbus University)

[41] Esping-Andersen, G. (1990) The Three Worlds of Welfare Capitalism (Princeton, NJ: Princeton University Press); Ferrera, M., Hemerijck, A. and Rhodes, M. (2001) The Future of Social Europe. Recasting Work and Welfare in the New Economy (Oeiras: Celta).

[42] Fritz Scharpf, The Eurpean Social Model: Coping with the Challenges of Diversity, JCMS 2002 Vol 40 No 4 pp 645ff, 650;

[43] Hans-W. Micklitz, From Social Justice to Access Justice : the European Challenge EUI LAW WP /2008 describes the fundamental differences of social justice in English and French contract law between pragmatism and principles

[44] The LEO dictionary was used at http://dict.leo.org

[45] Jürgen Traband, Über das Ende der Sprache in: Markus Messling, Ute Tintemann (eds) “Der Mensch ist nur Mensch durch Sprache”, Munich: Fink 2009

[46] The question of social Justice has been lately taken up by neo-liberal lawyers and economists in response to the financial crisis: Kirchhof , Das Maß der Gerechtigkeit, 2009, Sinn, Kasino-Kapitalismus: Wie es zur Finanzkrise kam, und was jetzt zu tun ist, 2009; Straubhaar , Die gefühlte Ungerechtigkeit: Warum wir Ungleichheit aushalten müssen, wenn wir Freiheit wollen 2009. They defend the procedural approach to justice where human dignity is replaced by fairness best expressed in Rawls, Theory of Justice, . The economic and social critique is now formulated by Armatya Sen, The Idea of Justice, 2009.

[47] It should be reminded that historic codifications were even called “Rechtsfrieden” and that especially on the international level the emergence of law ending hostility and wars through consent was seen as the most important function of law in general.

[48] It is symptomatic in this sensethat the DCFR omits those articles in all European civil codes which by providing exemptions underline the basic principle of law to reduce self-enforcement of rights and any form of illegitimate power. (see e.g. Arts 226 to 231 BGB on self-help)

[49] see also Hesselink 2008 p 70 with regard to the Acquis group, p 39 with regard to the DCFR. But page 16 contains a very questionable historic passage in which Hesslink assumes that private law started with the freedom of contract and then gradually was socialised in the 20th century. This lawyers’ perspective contrast with empirical sciences which show a gradual retreat of the state and an increase in power for private enterprise and its freedoms of contract during this century even under fascist regimes. Private law is no island and should be seen as part of the whole body of law which shifted from public to private in this century.

[50] DCFR, Interim Outline Edition, München, 2008, Introduction, n. 24.

[51] Chap. 5 of Aristotele, The Nicomachean Ethics translated by William David Ross, 1908, http://www.sacred-texts.com/cla/ari/nico/

[52] See P. Grossi, Locatio ad longum tempus, Napoli, 1963, 47, il quale riferisce al giudizio al periodo fino al II° secolo a.c. in cui operarono i grandi giurisperiti classici, and Zimmermann R., The Law of Obligations. Roman Foundations of the Civilian Tradition, Oxford Univesity Press, 1996, 387.

[53] Mayer-Maly T., Überwindung des Lohnvertrages?, in Selbstinteresse und Gemeinwohl, Berlin, Duncker & Humblot, 1985, 13 ff .

[54] K. Orren, Methaphysics and Reality in Late Nineteenth-Century Labor Adjudication, in L. Tomlins, Labor Law in America, Baltimore and London, 1992, 160.

[55] «Nobody ever saw a dog make a fair and deliberate exchange of one for another with another dog» (A. Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, 1776, I, Chapter II, S. 118).

[56] L. Mengoni, Note sul rapporto tra diritto e morale, Iustitia, 1998, 305 ss.

[57] C.W. Canaris, Die Bedeutung der iustitia distributiva im deutschen Vertragsrecht, München, 1997, 31.

[58] Lyon-Caen G., Défense et illustration du contract de travail, Archives de Philosophie du Droit, 1968, 13, 69.

[59] C.W. Canaris, Die Bedeutung der iustitia distributiva im deutschen Vertragsrecht, München, 1997, 74.

[60] O. Gierke von, Dauernde Schuldverhältnisse, Jerhings Jahrbücher Vol 64 (1914) 406-407.

[61] O. Kahn-Freund, Hugo Sinzheimer (1875-1945), in H. Sinzheimer, Arbeitsrecht und Rechtssoziologie, Gesammelte Aufsätze und Reden a cura di O. Kahn-Freund e T. Ramm, t. I° e II°, Frankfurt-Köln, Europäische Verlagsanstalt, 1976, 73 ff.

[62] H. Sinzheimer, Das Problem des Menschen im Recht, Groningen, 1933 poi in Id., Arbeitsrecht und Rechtssoziologie, 2, Frankfurt am Main, Europäische Verlagsanstalt, 1976, p. 53 ss.

[63] H. Sinzheimer, Otto von Gierkes Bedeutung für das Arbeitsrecht, 1922 Arbeitsrecht, 1.

[64] C.W. Canaris, Die Bedeutung der iustitia distributiva im deutschen Vertragsrecht, München, 1997, 37, 40.

[65] O. Gierke von, Dauernde Schuldverhältnisse, Jerhings Jahrbücher Vol 64 (1914) 356-357.

[66] Gierke von O., Die Wurzeln des Dienstvertrages, in Festschrift für Heinrich Brunner, München-Leipzig, Duncker & Humblot, 1914, 37 ff.

[67] P. Durand, Traite de droit du travail, Paris, 1947; whereas for Spain, cfr., , M. Rodríguez Piñero, Contrato de trabajo y relación de trabajo. (Bilance provisional de una polemica), in Annales de la Universidad Hispalense. Derecho, XXVII (1967), 1 ff .

[68] BAG, Grosser Senat, 27 febbraio 1985, in AP, § 611 BGB, no. 14 which marks the now definitive abandonment of the ideology of the Treuepflicht. F. Gammillscheg, Das deutsche Arbeitsrecht am Ende des Jahrhunderts, in Recht der Arbeit, 1998, p. 5 where the most authoritative contemporary German labour law scholar takes the opportunity to lament the fact that those abroad are often reluctant to take note that German legal scholars have abandoned this for some time now.

[69] L. Mengoni, Contratto e rapporto di lavoro nella recente dottrina italiana, in Riv. Società, 1965, p. 682 and G. Giugni, Mansioni e qualifica nel rapporto di lavoro, Jovene, Napoli, 1963..

[70] G. Lyon-Caen, Du Role des Principes Généraux du Droit Civil ed Droit du Travail (Première Approche), in Revue Trimestrelle de Droit Civil, 1974 (229), p. 231ff.; C. Radé returns to this point, La figure du contrat dans le rapport de travail, in Droit social, 2001, 802 ff.

[71] C.W. Canaris, Die Bedeutung der iustitia distributiva im deutschen Vertragsrecht, München, 1997, 75.

[72] G.B. Ferri, La «cultura» del contratto e le strutture del mercato, RDComm, 1997, 863.

[73] Anche C.W. Canaris, Die Bedeutung der iustitia distributiva im deutschen Vertragsrecht, München, 1997, 50 ammette che il problema sia affrontato al di fuori della logica del mercato e secondo il postulato della giustizia distributiva.

[74] Overview at Reifner, U., Social Banking – Ansätze und Erfahrungen über die Integration sozialer Zielsetzungen in privatwirtschaftliche Finanzdienstleistungen, in: Schuster, L. Die gesellschaftliche Verantwortung der Banken, Erich Schmidt:Berlin 1997 S. 205 ff

[75] For the German context, cfr. Hoyningen-Heune v. G., Arbeitsentgelt ohne Arbeit – Die Durchbrechung des Synallagma im Arbeitsrecht, in Festschrif für Klaus Adomeit, Luchterhand, 2008 and C.W. Canaris, Die Bedeutung der iustitia distributiva im deutschen Vertragsrecht, München, 1997, 81 ff.

[76] The fundamental 1929 writings of Hans Carl Nipperdey on Die Privatrechtliche Bedeutung des Arbeiterschutzes, in Festgabe für das Reichsgericht, IV, de Gruyter, Berlin-Leipzig, 1929, S. 203 ff. he highlighted the importance of provisions aimed at the protection of the worker’s person ,as accessory obligations for private law, too,

[77] See Mengoni L., L’oggetto dell’obbligazione, JUS, 1952, p. 156 ff. and Mengoni L., Obbligazioni «di mezzi» e obbligazioni «di risultato» (Studio critico), RDComm., 1954, I, p. 185-209, 280-320, 366-396.

[78] For the German context, cfr. Hoyningen-Heune v. G., Arbeitsentgelt ohne Arbeit – Die Durchbrechung des Synallagma im Arbeitsrecht, in Festschrif für Klaus Adomeit, Luchterhand, 2008 and C.W. Canaris, Die Bedeutung der iustitia distributiva im deutschen Vertragsrecht, München, 1997, 81 ff.

[79] The fundamental 1929 writings of Hans Carl Nipperdey on Die Privatrechtliche Bedeutung des Arbeiterschutzes, in Festgabe für das Reichsgericht, IV, de Gruyter, Berlin-Leipzig, 1929, S. 203 ff. he highlighted the importance of provisions aimed at the protection of the worker’s person ,as accessory obligations for private law, too,

[80] See Mengoni L., L’oggetto dell’obbligazione, JUS, 1952, p. 156 ff. and Mengoni L., Obbligazioni «di mezzi» e obbligazioni «di risultato» (Studio critico), RDComm., 1954, I, p. 185-209, 280-320, 366-396.

[81] Vgl. Reifner, Inclusive Contract Law – Poverty in Common and Civil Law, elektron. Ressource Hamburg/New York 2000 http://www.money-advice.net

[82] Wilhelmsson, Th. Critical Studies in Private Law – a Treatise on Need-Rational Principles in Modern Law, Kluwer: Dordrecht 1992 S. 180 ff

[83] Zur “Death of Debt” Doctrine vgl. Reifner, ‘Thou shalt pay thy debts’ Personal Bankruptcy Law and Inclusive Contract Law, in: Niemi-Kiesilainen, J./Ramsay,I/Whitford, W.C. (eds.) Consumer Bankruptcy in Global Perspective, Hart Publishing Portland 2003 p 194-228

[84] P. Legrand, European Legal System are not converging, International and Comparative Law Quarterly, 45 (1966) 52 ff.

[85] DCFR, Interim Outline Edition, München, 2008, Introduction, n. 24.

[86] O. Kahn-Freund, A Note on Status and Contract in British labour Law, MLR, 1967, 641.

[87] P. Stein, Norme forndamentali: in tema di accordo, contenuto, forma, interpretazione del contratto nel «codice civile europeo dei contratti», RDC, I, 2007, 235.

[88] H. Collins, Similarities and difference between labour contracts and civil and commercial contracts, XVI World Congresso f Labour and Social security, Jerusalem 3/7/2000.

[89] C. Barnard, S. Deakin, Redefining the Employment Relationship: flexibility or security? The UK Experience in a Comparative Perspective, in www.eng.dpis.unibo.it/NR

[90] The question of social Justice has been lately taken up by neo-liberal lawyers and economists in response to the financial crisis: Kirchhof , Das Maß der Gerechtigkeit, 2009, Sinn, Kasino-Kapitalismus: Wie es zur Finanzkrise kam, und was jetzt zu tun ist, 2009; Straubhaar , Die gefühlte Ungerechtigkeit: Warum wir Ungleichheit aushalten müssen, wenn wir Freiheit wollen 2009. They defend the procedural approach to justice where human dignity is replaced by fairness best expressed in Rawls, Theory of Justice, . The economic and social critique is now formulated by Armatya Sen, The Idea of Justice, 2009.

[91] It should be reminded that historic codifications were even called “Rechtsfrieden” and that especially on the international level the emergence of law ending hostility and wars through consent was seen as the most important function of law in general.

[92] It is symptomatic in this sensethat the DCFR omits those articles in all European civil codes which by providing exemptions underline the basic principle of law to reduce self-enforcement of rights and any form of illegitimate power. (see e.g. Arts 226 to 231 BGB on self-help)

[93] see also Hesselink 2008 p 70 with regard to the Acquis group, p 39 with regard to the DCFR. But page 16 contains a very questionable historic passage in which Hesslink assumes that private law started with the freedom of contract and then gradually was socialised in the 20th century. This lawyers’ perspective contrast with empirical sciences which show a gradual retreat of the state and an increase in power for private enterprise and its freedoms of contract during this century even under fascist regimes. Private law is no island and should be seen as part of the whole body of law which shifted from public to private in this century.

[94] DCFR, Outline Edition, München, 2009, Introduction, n. 15.

[95] O. Kahn-Freund, A Note on Status and Contract in British labour Law, MLR, 1967, 641.

[96] Introduction, n. 31.

[97] Art. 1:102, 1° c. del libro I delle DCFR Model Rules corrispondente all’art. 1:102 dei PECL slla quale see C. Castronovo, Good faith and the principles of European Contract Law, Europa e diritto privato, 2005, 589 ff.

[98] Come teme A. Somma, La buona fede contrattuale: modelli solidali e modelli ordoliberali a confronto, Europa e diritto privato, 2003, 502 ff.

[99] Artt. 2:101-2:105 of Book II; see F. Zoll, Remedies for Discrimination: a Comparison of the Draft Common Frame of Reeference and the Acquis principles, European Contract Law, ERA Forum Special Issue 2008, New York, 2008, 87 ff..

[100] Art. 7:301 del libro II.

[101] Cfr. MacQueen 2004, 417 ss.

[102] Barendrecht M., Jansen C., Loos M., Pinna A., Cascão, van Gulijk S., Principles of European Law. Service Contracts (PEL SC), Oxford University Press, Oxford, 2007.

[103] See C. Wendehorst, Das Vertragsrecht der Dienstleistungen im deutschen und künftigen europäischen Recht,AcP 206 (2006), 295.

[104] For a short summary see C. Barnard, EC Employment Law, Oxford, 2006, 172 ff.

[105] July 1986, 3, Case C- 66/85 [1986] ECR 2121.

[106] See lastly, at point 68 of the judgment of the Court on 13 January 2004, Debra Allonby Case C-256/01, [2004] ECR 873.

[107] C. Engels, Subordinate Employees or Self-employed workers? An analysis of the employment situation of managers of management companies as an illustration, CLLPJ, 1999 (21), 1, 76. For the proposal of the transformation of the contract of employment into an extended form of “labour market status” see Supiot, A., Casas, M., de Munck, J., Hanau, P., Johansson, A., Meadows, P., Mingione, E., Salais, R., van der Heijden, P. Au-delà de l’emploi: Transformations du travail et l’avenir du droit du travail en Europe. Rapport pour la Commission Europeénne (Paris, Flammarion, 1999).

[108] S. Deakin, The Evolution of the Employment Relationship, in The future of work, employment and social protection: The dynamics of change and the protection of workers (Lyon, 17/18 January 2002), ILO, 192. About vertical disintegration see Collins, Indipendent Contractors and the Challenge of Vertical Disintegration to Employment Protection Laws, Oxford Journal of Legal Studies 1990, 353 ff.

[109] These are legally independent but economically dependent workers who need protection like that accorded employees and so they are, for example, excluded from the scope of layoff legislation, but are covered by certain labour-law provisions on disputes, leave, and working conditions (specific legislation exists for homeworkers and commercial representatives). Two specific conditions must be met for workers to be described in this way [art. 12a(1) TVG]: first, they must work alone, without the assistance of salaried staff; second, most of their work or income must come from a single person or institution. For further details see W. Däubler, Working People in Germany, CLLPJ, 1999 (21), 1, 88-97 («the worker-like person is conceived as a “Typus”, too»).

[110] The labour law relationship known in Italy as «co. co. co» was defined for the first time in the Italian legal system by Art. 409 of Codice di Procedura Civile («the Italian CPR»), introduced by Act No. 533 of August 11, 1973 which concerns: «1) the relationships of private subordinated work, even if not relating to enterprises»; …omissis…«3) the relationships of commercial agency, of commercial representation [as for instance power of attorney in commercial business] and – here the co. co. co. contracts appear – other relationships of cooperation which in concrete terms correspond to the carrying out of a continuative and coordinated activity, mainly personal, although not having character of subordination». Act No. 335 of August 8, 1995, therefore, introduced the obligation to pay contributions to a specific section of the INPS. If the co.co.co. are working under a «contract of coordinated and continuative collaboration» and do not have their own specific cassa (pension fund), the total amount of the contributions is equal to 24.72% of the gross pay of the collaborator (of which 8, 24 per cent is charged to the collaborator and 16,48 to the employer). The boundary between dependent and “para-dependent workers” is the same as exists between dependent workers and the self-employed..

[111] Art.s L. 751, 761-2, 762-1, 763-1 and 782 code du travail; see O. Razzolini, The Need to Go Beyond the Contract: “Economic” and “Burocratic” Dependence in Personal Work Relations, forthcoming.

[112] Law No. 20/2007 July, 11 Estatuto del trabajo autonomo (LETA).

[113] Kent Källström, Employment Agreements and Contract Work in the Nordic Countries, www.

[114] S. Deakin, The contract of employment: a study in legal evolution, Working Paper 203, ESCR Centre for Business Research, Universty of Cambridge, 2001, 34.

[115] See Adalberto Perulli, Economically Dependent/Quasi-subordinate (Parasubordinate) Employment: Legal, Social and Economic Aspects. Study for the EuropeanCommission. Retrieved April 27, 2006, from:http://ec.europa.eu/employment_social/labour_law/docs/parasubordination_report_en.pdf

[116] S. Deakin, Does the „Personal Employment Contract“ Provide a Basis for the Reunification of employment law?, ILJ, 36 (2007), 70; M. Freedland, The Personal Employment Contract, Oxford, 2003.

[117] A. Jeammaud, L’assimilation de franchisés aux salariés, Droit social, 2002, 2, 161; H. Collins, Regulating the Employment Relation for Competitiveness, ILJ, (30) 2001, 21; B. Nagel, Franchisenehmer und Arbeitsrecht, in Recht und soziale Arbeitswelt, Festschrift für Wolfgang Däubler, F.a.M., 1999, 100 ff.; W. Däubler, Working People in Germany, CLLPJ, 1999 (21), 1, 83, 89.

[118] Peter Auer and Bernard Gazier, Introduction, in The future of work, employment and social protection: The dynamics of change and the protection of workers (Lyon, 17/18 January 2002), ILO.

[119] Tra i non molti profili positivi del Green paper on Modernising labour law to meet the challenges of the 21st century [Bruxelles, 22.11.2006 COM (2006) 708 final] Libro verde Modernizzare il diritto del lavoro per rispondere alle sfide del XX secolo [Bruxelles, 22.11.2006 COM (2006) 708 definitivo] si segnala il fatto che si pone il problema della tutela del lavoratore economicamente dipendente; see about this The labour lawyers and the Green Paper on “Modernising labour law to meet the challenges of the 21st century”. A critical and constructive evaluation, www.europeanrights.eu/index.php?funzione=S&op=5&id=14 – 11k –).

[120] Art. 2:111 del libro IV parte C.

[121] Verfassungsgerichtshof 17.1.1990, NZA, 1998, 470.

[122] In Italy temporary agency labour (the exact term is ‘leased labour’) is regulated by articles 20-28 and 85 of Legislative Decree 276/03. Temporary agency work was introduced in Italy by Law 196 of 1997, whose section covering this type of employment was repealed in 2003 by Legislative Decree 276/03, which changed the denomination from ‘temporary agency work’ to ‘staff leasing’ but made only minor changes to the previous law. Since 1 January 2008, the date when Law 247/2007 came into force, it has no longer been possible for agencies to stipulate indefinite staff-leasing contracts, but only fixed-term ones.

[123] In Germany the legal definition is given in the first paragraph of the AÜG: Employers (temporary work agencies) who intend to make the services of workers (temporary workers) available to third parties (user enterprises) on a commercial basis shall require a licence. A TWA must meet the typical obligations of an employer. If it does not, it is deemed to perform only placement services. Workers who are employed only to be hired out are temporary workers and those companies who hire them are user enterprises.

[124] See M. Fuchs, Gleichbehandlungsgebot und Tarifvertragspraxis in der Leiharbeit, in: Thomas Dieterich, Katsutoshi Kezuka, Martine LeFriant, Luca Nogler, Heide Pfarr, Festschrift Ulrich Zachert, Baden-Baden 2009.

[125] However, the extension of collectively agreed minimum wages under the Posted Workers Act (Arbeitnehmerentsendegesetz, AEntG) to temporary work agency is currently under discussion. BZA and iGZ together with the bargaining association of all trade unions that are affiliated to the Confederation of German Trade Unions (Deutscher Gewerkschaftsbund, DGB) have applied to be covered by the Posted Workers Act. As competing collective agreements exist in the sector, the two parties forming the present coalition government disagree about the legality of granting the application. At the moment, the Posted Workers Act applies only to a small number of industries.

[126] Schaefer, Holger, 2007, Warum die Zeitarbeit boomt, Thema Wirtschaft Nr. 108, IW Köln, Cologne; Wassermann, Wolfram /Rudolph, Wolfgang, 2007, Leiharbeit als Gegenstand betrieblicher Mitbestimmung, Arbeitspapier No 148 der Hans-Böckler-Stiftung, Düsseldorf.

[127] See Udo Reifner, Die Geldgesellschaft, Frankfurt 2009 Third Chapter; see also Fortune July 6, 1987 “The Money Society”; Vesa Muttilainen, Credit society, National Research Institute Publication no. 189 of Legal Policy Helsinki 2002 p 301: “Credits and debt problems are closely associated with social policy. Credits constitute an important part of a household’s income and they provide a means of transferring funds from one stage of life to another. They also balance temporary fluctuations in income. Debt problems, again, increasingly constitute a risk to a person’s income that can result in serious economic and social harm. To secure an income in risk-prone situations has traditionally been a basic function of social policy.”

[128] Spanogle, Rohner, Pridgen and Sovern’s Cases and Materials on Consumer Law, 3d (American Casebook Series) West Law School 2007; Spanogle, Rohner, Pridgen, and Sovern’s Selected Consumer Statutes, 2009;

[129] For a discussion see John Kampfner, Don’t risk real freedom for short-term material gain – Our civil liberties are in jeopardy and we are to blame. We have reduced democracy to the right to make and spend money. The Times September 7, 2009 (http://www.timesonline.co.uk/tol/comment/columnists/guest_contributors/article6824027.ece)

[130] The database on financial decisions FIS which collects jurisprudence during the last 15 years in Germany contains 8415 decisions mainly from higher courts (Supreme court: 2643) in its vast majority concerning consumer issues. (http://www.money-advice.net)

[131] Dir. 87/104/EEC

[132] This claim is shared by Martijn Hesselink (see FN 22)

[133] Especially the group led by Norbert Reich, Hans Micklitz, Thomas Wilhelmsson, Geraint Howels, Brigitta Lurger, Klaus Tonner, Iain Ramsay, Tony Williamson, Bernd Stauder, Thierry Bourgoignie and others dominant in the International Association of Consumer Law have always insisted on the two dimensions of consumer protection. The Kennedy Doctrine as well as the EU alludes to this dimension always by calling it the protection of economic interests of consumers. For further discussion see Udo Reifner, Verbraucherschutz im Kreditrecht – Aktueller Stand und Perspektiven, in: Micklitz, H.-W. (Hans-W. Micklitz (Hrsg.) Verbraucherrecht in Deutschland – Stand und Perspektiven, Tagungsband der 1. Bamberger Verbraucherrechtstage 6. – 8. Oktober 2004, 2006, 458 S. 155 – 190; ibid. Verbraucherschutz im Umbruch – Nachhaltigkeit oder Selbsthilfe durch die Hilflosen, Verbraucher und Recht 2004 pp 13-14; Bankenethik und Verbraucherschutz, in Wagner, A./Seidel, C.: Ethik in der Bankenpraxis, Ffm: Bankakademie Verlag 2004, pp 61-94; ibid. Verbraucherschutz und Kreditwirtschaft, in: Sparkasse 2000 pp 554 – 559; Finanzdienstleistungen und Verbraucherschutz in der europäischen Harmonisierung, in: Stefan Grundmann (ed) Rechtsfragen der Europäischen Harmonisierung Mohr Siebeck: Tübingen 2000, S. 577 ff

[134] For a description in English see Udo Reifner „Good Faith“: Interpretation or Limitation of Contracts? The Power of German Judges in Financial Services Law, in:.Brownsworth, R/Hird N.J./Howells, G. Good Faith in Contract, Ashgate:Dartmouth 1999 pp 269 – 310; Bundesgerichtshof Neue Juristische Wochenschrift 1986, 2564; 1988, 1659; 1995, 1019; 1991, 834; Erman-Palm, BGB 12th ed 2008 §138 No. 96 ff; Goedefroid, Verbraucherkreditverträge, 3rd ed. 2008 No. 335 ff; Derleder/Knops/Bamberger-Artz, Handbuch zum Deutschen und europäischen Bankrecht, 2004 §26 No. 2 ff; Schimansky/Bunte/Lwowski-Gundlach, Bankrechtshandbuch, Vol. 1, 3rd ed 2007 §82 Rdn. 11 ff; Bülow, Sittenwidriger Konsumentenkredit, 3rd ed 1997; Reifner, Handbuch des Kreditrechts, 1991 S. 113 ff

[135] The forms of usury restricitions in the EU are presently under scrutiny of a project tender of DG Internal Market n° MARKT/2009/08/H which will lead to a report in 2010

[136] For an overview see Whitford, B./Ramsay, I./Niemi-Kiesiläinen, J. (eds). Consumer Credit, Debt and Bankruptcy: Comparative and International Perspectives Hart Pub. UK 2009 pp 105-128; Reifner, U; Niemi-Kiesilainen, J.; Huls, N.; Springeneer, H. Study of the Legislation relating to Consumer Overindebtedness in all European Union Member States – Contract Reference No. B5-1000/02/000353, Brussels 2003; Niemi-Kiesilainen, J./Ramsay,I/Whitford, W.C. (eds.) Consumer Bankruptcy in Global Perspective, Hart Publishing Portland 2003; Udo Reifner, Janet Ford, J. (eds), Banking for People, Vol. 1 Social Banking and New Poverty, Vol.2 Unemployment and Consumer Debts, de Gruyter: Berlin New York 1992

[137] Luca Nogler/Udo Reifner, Lifetime Contracts – Rediscovering the Social Dimension of the Sales Contract Model, Jubilee Thomas Wilhelmsson, Helsinki JFT 3–4/2009 s. 437–455; Luca Nogler/Udo Reifner Der menschliche Makel – Principles of European Contract Law zwischen Merkantil- und Dienstleistungsgesellschaft, in: Thomas Dieterich, Katsutoshi Kezuka, Martine LeFriant, Luca Nogler, Heide Pfarr, Festschrift Ulrich Zachert, Baden-Baden 2009 pp 54-74

[138] But already the locatio conductio specialis incorporated the rent of such items which were interchangeable and therefore could be repaid by an equal amount from the same genus. In so far the locatio conductio is also the model for money loans.

[139] D.19.5.24 (Africanus)

[140] Udo Reifner, Das Zinseszinsverbot im Verbraucherkredit, Neue Juristische Wochenschrift 1992, 227 ff

[141] See for its rigorous application in Italy Supreme Court decision 17 October 2000 n. 425

[142] see Reifner, U; Niemi-Kiesilainen, J.; Huls, N.; Springeneer, H. Study of the Legislation relating to Consumer Overindebtedness in all European Union Member States – Contract Reference No. B5-1000/02/000353 2003

[143] Martijn Hesselink, The Values underlying the Draft Common Frame of Reference: What role for Fairness and “Social Justice”, Study for the European Parliament 2008 PE 408 312 IP/A/IMCO/ST/2008-11 – IP/C/JURI/FWC/2006-211/Lot3/C1/SC2.

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