Contractualisation

Research Leader: Nicolas Carette

Overview

This research line is focused on one form of private ordering: contractualisation. We investigate both contracts and unilateral legal acts in the different fields of private (international) law. Our perspective is the paradigms of the law of obligations, particularly private autonomy and the binding effect of legal acts.

Our general purpose is to research the scope and boundaries of personal autonomy in private law. We conduct research into private autonomy vis-à-vis mandatory or default statutory rules and regimes in State regulation. We also investigate the relationship between contracting parties and with third parties (for example, issues of legal certainty and reasonableness, and the different possible categories of third parties).

Debates

Against that broad background, we have the following specific research interests.

Firstly we investigate the contractualisation of family law and family property law from two different perspectives, and in light of the traditional division between contract and status. On the one hand, we approach family law (status) from the paradigm of the law of obligations (contract). This research aims to determine the extent to which family law can be considered to be contract law, and potential opportunities for private family governance. On the other hand, we investigate which family law paradigms may be applied to contract law. Our research here aims to identify how property law and contract law may be used to privately regulate relationships in the same way as family relations, for example between de facto cohabitants. This research will also allow us to redefine the contract/status dichotomy in general.

​ Secondly, we investigate the right to dispose of (and the loss of) subjective rights and mandatory legal restrictions. Again, we research these issues both in terms of the relationship between State and citizen and in terms of the relationship between citizens themselves. Particular points of interest will be: the protection of property and relevant public law restrictions (equality of citizens before public burdens and article 1 of the First Additional Protocol to the ECHR); the application of property paradigms to the human body and to bodily parts; boundaries and restrictions in inheritance law (mandatory inheritance rights); restrictions on land use; personal right and property rights associated with immovable goods; and evolutions in housing.

Thirdly, our research concerns the increased freedom for parties to choose the competent forum and the applicable law within the field of private international law. The expansion of choice of law and forum freedoms raises questions about how far a legal system can restrict this freedom by means of, for example, the application of the international public policy exception. Sometimes such exceptions or limitations are necessary in order to protect certain members of society that are in a weaker (bargaining) position. The idiosyncrasies of different states on this point has led to a harmonised European approach to private international law, for example the novel use of the enhanced co-operation procedure in the context of the Rome III Regulation (law applicable to divorce).

Specific Research Questions

  1. With regard to the status/contract dichotomy: 
    1. What are the scope and boundaries of contractual freedom in matrimonial property (and in property relations between cohabitants)? 
    2. What are the scope and boundaries of contractual freedom in inheritance law? 
    3. How can estate-planning techniques, including trusts and trust-like figures, be used to ‘contractualise’ family law and to ‘familiarise’ contract law, e.g. by creating ‘community property’ between de facto cohabitants? 
    4. What balance can be found between contractual freedom and state regulation of the insurance market, particularly in light of the need for transparency in insurance contracts from a consumer law perspective and to prevent reckless behaviour? 
    5. What role does contract law have for family property law? 
  2. With regard to the right to dispose of subjective rights 
    1. Can an exceptional breach of the equality before public burdens principle justify risk-based liability (without fault) in administrative law? 
    2. Which contractual paradigms can we apply to rights of self-determination over the human body, bodily parts and interventions on the body (including organ transplants, patentability of stem cells and clinical trials). 
    3. Which property protection restrictions can be applied between parties and vis-à-vis third parties with regard to inheritance law and to estate planning (e.g. administration clauses)? 
    4. How should we assess restrictions on property on the basis of acquisitive/extinctive prescription? 
    5. To what extent can contractual rights be lost (e.g. extinctive prescription, estoppel, waiver of rights, abuse of rights)? 
    6. To what extent do mandatory protection rules in contract law deviate from the default law, and does this modify the default law? 
  3. With regard to private international law 
    1. Do general principles on party autonomy underlie the recent and upcoming EU and Hague Conference instruments in private international law? 
    2. How can we reconcile the application of the international public policy exception with the necessary accommodation of minorities? 
    3. What role do mechanisms of private international law play in finding the appropriate balance between individual choice and protection? 
    4. How can the tools of private international law help individuals to find legal certainty? 
    5. What can we learn about national legal pluralism from public international law? 
    6. How can we better protect of employees through private international law on employment in the international transport sector, in light of the increasing freedom of choice for the employer?