Edited by Christian Twigg-Flesner
Chapter 22: Contract theory and EU contract law
This chapter explores the relationship between contract theory and European contract law. In particular, it addresses the question: what, if anything, can EU contract law learn from contract law theory and vice versa? Not much, one might conclude from examining a recent collection of essays on the philosophical foundations of contract law. Of the 18 contributions to that volume, which was edited and published in Europe, only one article refers to EU contract law, and it was written by an American scholar. Does this mean that, unlike national contract law, the contract law of the EU does not have any philosophical foundations? Or, conversely, do contract theorists have a blind spot for EU contract law? Or, is the implication that, from a philosophical perspective, the existing EU contract law should be rejected? Obviously, such very general conclusions cannot be drawn from the (generally excellent) contributions to one single book. However, this particular volume is not the only example in contract law theory that almost totally ignores EU contract law or in any case seems to fit rather uneasily with it. Especially, essentialist and other monist normative theories of contract law do not match well with EU contract law. This contribution therefore more specifically addresses the mismatch between much of the existing contract theory, on the one hand, and EU contract law on the other.
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