Udo Reifner\/Luca Nogler<\/p>\n
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Preface<\/strong><\/p>\n The following points have been updated from the paper presented at the Trento seminar on <\/em>September 25, 2009<\/strong><\/em>. We use the notion „lifetime contracts“ as a working definition for social longterm contracts like labour, tenancy and consumer (credit) contracts. From a political perspective we should relate to „economic and social interest covered by labour, consumer and tenancy law“ . This relates to the existing social associations (trade unions, consumer organisations and tenancy associations) as well as to the correponding law associations (Int.Labour Law; IACL; Deutscher Mietrechtstag etc) providing our project with the chance to political support and a link to the social movement. Since the concept of consumer law is quite unclear covering a mere market orientation in its neo-liberal information model on one hand while on the other it also covers what is called „the economic interest“ of consumers which coincides with „debtor’s protection“ especially present in credit law we should make it clear that our focus on consumer law is economic and social and not informational.<\/em><\/p>\n We are aware of the fact that other socially meaningful longterm contracts do exist in the area of goods of first necessity, associations, company law but we assume that the idea of a life time contract based on the legal idea of renting (location conduction) has nowhere emerged so clearly as in these three areas. The points made here are very preliminary and incentives for work and partition of labour. We would like to get as much material and hints as to the national and international discussions in this area as possible The project will be conducted in the three official EU-languages: German, French and English. English will be the organisational language. In theory we should refer to the concepts inherent in all three languages. Papers can also be presented in the mother tongue of the author if a summary or explanation in one of these languages is available. In our discussions we will provide short translations but make no restriction to the use of either of these languages.<\/em><\/p>\n Fundamental \t\tsocial principles:<\/strong> Each lifetime \t\tcontract has developed own principles on human labour \t\t(ILO-conventions), responsible credit (ECRC principles) and decent \t\thousing. The draft leaves such „fundamental principles“ to the \t\tnational legislator since they are hard to integrate into Common \t\tLaw and therefore lack consensus. Social discrimination, usury, \t\tminimum wages, individual hardship, duty of care are examples.<\/p>\n<\/li>\n Consumer \t\tlaw: <\/strong>Consumer law is not a unified \t\tbody of law. Already at its starting points two forms of consumer \t\tprotection (informational procedural approach – substantial \t\tcompensatory approach) have divided consumer law into two diverse \t\tand even contradictory parts of the law. (Reich, Stauder, Micklitz, \t\tTonner, Bourgoignie, Wilhelmsson, Howels, Lurger) The „informed \t\tchoice“ consumer law of the upper class and the consumer law of \t\tthe needy lower class. The EU has never integrated both parts of \t\tnational consumer law. Thus such consumer law which represents the \t\ttradition of debtors‘ protection, usury, social discrimination, \t\tminimum product standards for all, support in default situations, \t\trules for illness, unemployment, accidents, sudden death etc. \t\tEspecially the three underlying threats of unemployment, \t\toverindebtedness and homelessness are not considered. In addition \t\tthe informational EU-consumer law is centred around formal sales \t\tlaw models. The new Draft of a Consumer Law Directive excludes \t\tfinancial services, tenant law and labour issues thus restricting \t\titself to the informational approach in spot contracts just as the \t\tEU project which led to the Acquis Consommation of the EU and later \t\tto the DCFR. The focus on consumer credit contracts although unlike \t\ttenant and labour law highly regulated in the form of the consumer \t\tinformation and sales law model (information, withdrawal, access \t\tetc) helps to escape the legal trap consumer sales law poses when \t\tapplied to small items and daily spot contracts. It uses the \t\topposite starting point than the Consumer Acquis which excludes \t\tconsumer credit contracts from its foundations.<\/p>\n<\/li>\n Labour \t\tLaw:<\/strong> The fact that employment \t\trelations<\/em> are excluded from the scope \t\tof the code<\/em> or from the principles<\/em> does not imply that there is no interest of labour lawyers to be \t\trepresented in these principles. First there are increasing numbers \t\tof contractual relations which are not labour contracts but fulfill \t\tthe same functions for the creditor through other forms like for \t\texample contracts on independent labour or franchising contracts \t\tetc. Second if the general part of contract law – as it was \t\torginally the case with the German BGB – is only functional with \t\tthe logique of the market and not orientated at protecting the \t\tpersonality of the debtor and his or her lifetime <\/em>the logic of labour contracts will \t\thave difficulty to become general guidelines for other long term \t\trelations which presently is the case in many countries. For \t\texample the economic crisis has led a number of States to pose \t\tsocial conditions to the banks when using government help. In Italy \t\tthe „Tremonti bonds have led to a transformation of the system of \t\tdefault in credit contracts where now issues which in labour law \t\tare recognised since long (illness, unemployment) have now also be \t\tobserved in general consumer contracts.<\/p>\n<\/li>\n Roman \t\torigins:<\/strong>The different lifetime \t\tcontracts have emerged from one single type of contract model: the \t\trent model (locatio conductio). It had been the market driven \t\talternative to the sales model (emptio venditio) who overtook the \t\trole of the core model leaving behind a scattered landscape of rent \t\tcontracts only when in the middle of the 19th<\/sup> century the first step in globalisation required world wide trade \t\tin the form of the transfer of abstract property titles. (Hedemann, \t\tWaline, Wieacker, Grossi) In this property rights lifetime is \t\tinvisibly frozen and only apparent in the analysis of its price. \t\tInstead the underlying idea of locatio conductio (rent) was before \t\tapplied to all forms of renting the flow of anothers lifetime in \t\tlabour (locatio conductio operarum and operis), things (locatio \t\tconductio rei) and interchangeable items resembling modern money \t\t(locatio condictio irregularis). Its interesting development into \t\tthe revival of the locatio ad longum tempus the middle ages where \t\tthe productive use of the rented time became a decisive requirement \t\toverriding the property rights of the dominus (Grossi) shows modern \t\tsolutions for lifetime contracts today. Also in tenancy or labour \t\tcontracts para-ownership rights (for example the protection in \t\tspecific forms) take into account that the lifetime <\/em> of a person is at stake.<\/p>\n<\/li>\n<\/ol>\n<\/li>\n<\/ol>\n Comment: The common roots of the different lifetime contracts have been obscured by the continual use of pre-captialist forms of using others time where gratuity, faith and generosity ruled. Until today loan (Darlehen<\/em>), lease (Verwahrung and Leihe) and mandate (Auftrag) reflect the ancient forms of unilateral benevolent obligations of the Roman law (mutuum, deposito and pegno, mandatum)<\/p>\n Comment: This again has been obscured this time by a misunderstanding of ancient slavery, the form in which foreign labour had been applied. „Renting“ the human workforce or quoting and valuing in terms of capital has been seen as immoral by socialists (Lotmar) as well as by conservatives just like renting money for interest has been banned by clerical as well as progressive institutions. In both cases the rejection of the idea to view labour as a form of capital one can rent from its owner (in Roman and Babylonian law free persons were allowed to rent themselves out as slaves for a certain period to pay there debt and still remain free) or to view living in a home as using others capital or creating wealth out of the use of debt money does not question the common basis they have in rent and capital. It is its primitive idea that even if lifetime is at stake one could trade it only with regard to its exchange value and not taking into account that real life is concerned. (see Lotmar, Sinzheimer, Mengoni, Marx, Lasalle)<\/p>\nQuestions for Research: Lifetime Contracts in a European Perspective<\/h2>\n
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Need for Research: DCFR requires principles of lifetime contracts<\/h2>\n
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Logic of the Research: Lifetime Contract is a legal figure like a Sales Contracts<\/h2>\n
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SWOT Analysis of the EuSoCo Approach<\/h2>\n
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Conditions for Research: Status quo<\/h2>\n
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