Marini, Giovanni --- "Critical comparative contract law" [2017] ELECD 606; in Monateri, Giuseppe Pier (ed), "Comparative Contract Law" (Edward Elgar Publishing, 2017) 95

Book Title: Comparative Contract Law

Editor(s): Monateri, Giuseppe Pier

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849804516

Section: Chapter 5

Section Title: Critical comparative contract law

Author(s): Marini, Giovanni

Number of pages: 16

Abstract/Description:

The course of the twentieth century is characterized by the growing influence of social justice within private law. The liberal conceptions of the classical legal thought failed to portray the actual transformation from a set of formal notions regarding private autonomy and freedom of contract to the idea that, in different contexts, individuals were not so autonomous and free to contract. In particular, this transformation imposed a limitation to the freedom of contract and its binding force and introduced a series of duties to protect the weaker party and to avert unfairness. Similarly, social justice within the law of property meant the introduction of the social function idea and the consequent elaboration of a series of limits to the classical concept of liability, based on fault in tort law. This social approach spread in European and North American legal systems on the one side mainly through legislation (and more rarely the judge through general clauses), which took a primary role through the legal protection of specific categories of weaker parties (workers, consumers) and on the other, through courts, which began deploying doctrines to pursue the socialization of private law. After World War II, in Europe the process continued with the new generation of constitutional charters. Several constitutions drafted during these years were profoundly influenced by social justice ideas: the Italian Constitution, for example, contains the duties of solidarity (article 2), the conception of substantial equality (article 3) and the idea of the social function of property (article 42).