To refer to the social dimension of a contract is to challenge the idea that a contract is simply an act of autonomy (self-determination). However, if a certain degree of heteronomy can coexist within a contract, the different strands must be identified in order to render this coexistence sustainable. The contract is, in reality, an expression of the autonomy and individual responsibility of those, who, in the act of concluding a contract, are consciously bound by that act. What is required is a solution that does not distort the essential nature of the contract, but instead determines the scope of intervention, conditions and procedures that are compatible with the concept of the contract that can be integrated in the neo-institutionalist model that characterises the law in Europe after the crisis of pure normativism. From an abstract point of view it is possible to hypothesise two complementary strands, which are not necessarily incompatible, in order to fully understand the social dimension of contracts. indisputable heteronomy based on the legislative power of the majority. An addition to the contract by reference to moral values, justified by the fact that contracts are acts of social relationality and legally binding. Thus, the moral values that are considered integral elements of contracts are to be intended as ethical–legal values, that is, values of an implicitly dual nature, being both moral and legal. In the first case, the social dimension could seem to be an authoritarian intervention in the contract, resulting in expropriation with a punitive effect on certain categories of people to the advantage of others. In the second case, the intervention is less authoritarian and can be explained intersubjectively. Indeed, autonomy is not purely arbitrary, because contracts operate within a social context and consequently must take into account a measure of morality. They are not merely private affairs, but also juridical, and so must be applicable to the general rationality of the law. The law is tertium related to the parties, and when they seek enforcement of their contract they accept this third dimension. This concept is pan-European and concerns not only procedural rules but the content of the contract as well. In certain countries it is more explicit than in others, such as in England, where the courts work with so-called implied terms. With regard to moral values, I wish to emphasise legalised moral values. Moral values become legal principles and are therefore subject to the test of reasonableness and the need to establish coherence with other principles. There is no place in the law for fundamentalism of any sort, ethical, religious or even economic. Two fundamental issues relating to Reethisierung should be highlighted: 1 justifying duties without compensation, these being generally purposes based on the principles of solidarity (safeguarding good faith and the weak generally). This view proposes a justification closer to the idea of autonomy as a social facet of cooperation. Everybody relies on a general principle of ethics when they enter into a relationship with another. From a general perspective, the rules derived from moral values are not merely authoritarian decisions, but products of intersubjective research in the field of the social experience of values. In particular, this should be valid regarding ‘basic necessity life-time contracts’, such as contract of labour, loan for the purchase of a house, guarantee in favour of a family member, tenancy for housing, healthcare contracts, etc. Those are contracts that usually last for a long time of life and regard basic needs of people. 2 establishing boundaries demarcating the tendency towards universal commodification and an extension of the market into the voluntary sector (so-called third sector). Creating or leaving the condition unmodified in order for gratuitous acts to be realised. Only the first issue will be examined in this abstract. It is not true that bilateral contracts are ethically indifferent, as Max Weber and many others maintain. Canaris stressed the link between bilateral contracts and what we can call Freiheitsethik. Bilateral contracts are an application of the principle of commutative justice in a formal sense (sinallagma in a subjective sense), and thus they are tools of self-determination and pluralism. There is also a certain sense of dignity implicit in the meaning expressed in the famous quotation from Adam Smith: «It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest. We address ourselves not to their humanity but to their self-love, and never talk to them of our own necessities but of their advantages. Nobody but a beggar chooses to depend chiefly upon the benevolence of his fellow-citizens» A. Smith, An Inquiry into the Nature and Causes of The Wealth of Nations, Liberty Press, Indianapolis 1981, 26-27. Dignity is intended as economic independence and willingness to pay what one party requests from another. The ethics of the contract cannot, however, simply be reduced to this. If commutative justice in a formal sense may be considered to be an instructive aid in explaining, in part, the fundamental principles pertaining to the concept of the social contract, it does not explain everything. At least two questions remain unanswered: a. Why at the time of the social contract did the wolves agree to establish a contract with the lambs? When the strong man respects the weak man a moral issue is raised; otherwise the strong take complete advantage of their strength. In a nutshell, it can be said that the metaphor of the social contract is not sufficient to resolve this paradigm. b. Why does the creditor trust the butcher not to supply him with rotten meat or the physician to cure him not only for remuneration (creditor in the literal sense means he who trusts, as Gläubiger derives from glauben)? Are we sure that all professionals, or the majority of them, carry out their work only to receive remuneration and not also because of the fact that they have pride in a job well done? Compensation cannot explain all the rules of obligation. For instance, the rule that the creditor may not cancel a debt without the consent of the debtor. Iustitia commutativa is only a part of the iustitia involved in contracts. Ultimately, as a metaphor of civilisation, we should take into consideration the inherent ties to the concept of social contract, the dimension of ‘care’ that Heidegger proposed as the basis of humanity. It is not just a question of freedom, but also the idea of taking care of others. In other words, there is not just one paradigm, but rather two: one that refers to the social contract as a framework for the formal freedom of everybody, and the paradigm of the family in the generic (not necessarily traditional) sense of solidarity (there is now reference to maternalism, or maternage in French, in order to avoid the ambivalence of the concept of paternalism), which means ensuring that the weak are not further weakened in a social and economic sense. This point of view is typical of post-Auschwitz constitutions like the German and Italian ones, which provide for formal and substantive equality. This is undoubtedly a crucial step. Formal equality and substantive equality must cohabit, especially when we refer to contracts in the field of autonomy. If we consider that cohabitation, that is, the idea of a general protection of the weaker party of a contract, is absurd because every contract has a stronger party and a weaker party, the logical result would be the elimination of contracts. It is therefore essential that a formal procedure be established to provide general rules applying to contracts in circumstances where a party may be typically in a stronger position and to protect typical categories of people such as workers or consumers, who are formally (by statutory law or socially) considered the weaker party. Having once established the limits to the contractual protection of the weak, we can continue the discussion on the moral perspective of contracts; the arguments relating to moral aspects can be diagnosed in a more rational manner. According to the continental tradition of law, there remain rules allowing moral points of view to filter through into the contract. Leaving aside the protection of gute Sitten (buoni costumi), e.g. § 138 BGB, good faith is the most essential principle. Fides means trust, reliance on the morality of the other party. We assume the existence of an ethical code that provides a set of criteria that can be applied to assess the behaviour of both parties. In the Italian code as in the German civil code, good faith is already enshrined as a guiding principle during the pre-contractual period when both parties are still negotiating. It should be noted that good faith introduces the fundamental principle of Diskursethik – in the sense of Habermas and Apel – between the parties. Both have to communicate or act in good faith, and in good faith they have to understand each other. Usually we refer to procedural fairness for these types of rules. Duties of information, of clare loqui (speaking clearly), are well established; in English law we should remember the duty of confidentiality (for instance in the Seager vs Copydex case). However, good faith can also provide substantive fairness. The development of the Unzumutbarkeit (inesigibilità) is highly significant, a limitation on the creditor’s claim when the performance of an obligation conflicts with another duty that is more important from a constitutional perspective. This perspective is of particular interest in the context of the duration of contracts that may infringe upon the relationships of the debtor, especially in family relationships. The principle of specific performance (adempimento in natura, Naturalherstellung) is also a rule based on ethical values. The duty is a categorical imperative without the ability to opt for damages instead of performing the obligation. I wish to emphasise, obviously, the efficient breach theory that provides for “[t]he view that a party should be allowed to breach a contract and pay damages, if doing so would be more economically efficient than performing under the contract.” The duration of the contract is the framework in which an ethical approach is more appropriate, and we should note three points. One is that when a relationship lasts for an extended period it creates reliance and proximity. This is valid, even though one party is an enterprise; otherwise we create a moral shield in favour of people who take advantage of the enterprise and conceive the enterprise as a machine in which people are mere cogs to be exploited. Moreover, regarding ‘Basic Necessity Life-contracts’, the extended period tends to aggravate the differences between a professional party (an enterprise) and a person who contracts for personal purposes (labour, loan for the purchase of a house, guarantee in favour of a family member, tenancy for housing), especially in the case of a change in circumstances, given that an enterprise is more able to calculate risks and administer their costs than are non-professionals. Finally, the different relationships may be inextricable, and in certain cases we can speak about contractual links (collegamento negoziale, Verbundene Verträge): for example, labour, tenancy, loans, family relationships. Art. 33 Charter of Fundamental Rights of the European Union provides for the principle of reconciliation between family and professional life. In this perspective, the contract of labour ensures the sanctity of maternity; evidently the duty to the family (child) is more important than the duty to perform. The law restricts the right to withdrawal of a tenancy in order to protect the rights to housing not only of the tenant but also of family or cohabitants with children. We can imagine a right to suspend payment of instalments on a loan in cases of redundancy through no fault of the debtor when the worker has to provide for a member of the family (to pay school fees, to pay medical bills for themselves or for a member of the family). In cases of a guarantee by a non-professional person in favour of a member of the family, the bank has at least a duty to keep the guarantor regularly updated as to the financial circumstances of the debtor and the consequences the guarantee would have to share in order to allow the guarantor to terminate the contract before default proceedings have been initiated, when circumstances have varied too greatly from the initial contractual obligations. Scholars tend to be too rigid in their distinction between the purposes of private law and those of public law. The first must provide rules in order to promote commutative justice and Freiheitsethik, while only public law has the obligation to apply distributive justice. This distinction appears to me to be too rigid, and I would prefer a more systemic view, stressing that the relationship between the two distinctive components of the law should be more coherent. Private law is able to pursue some distributive justice under certain conditions. A clear definition is needed of the subjects (weak parties) who are protected and the subjects who should be protected. Interests or goods to be protected should also be clearly defined. There should be goods of recognisable intrinsic value (necessary goods like water, schooling, housing, health, etc). Some are referred to as common goods (commons) because they relate to the fundamental rights of people and thus should not be subject to exclusive possession, but instead be governed according to the law so that everyone can benefit from them. Self-determination in a solidaristic system cannot be the unique criterion for evaluating the value of goods. In particular, it is essential to specify a number of constitutional values related to certain professions. Bankers, for example, must execute due diligence with respect to the savings of non-professional people to ensure that those savings are safeguarded, since savings are a good protected by the law (an example is the Italian constitution: see art. 47. La repubblica incoraggia e tutela il risparmio in tutte le sue forme, disciplina, coordina e controlla l’esercizio del credito). Thus, certain rules should be taken into consideration in order to promote ‘responsible credit’ as a paradigm for measuring the performance of the good banker (as Reifner suggests). This could be considered as an application of good faith that requires the professional debtor to perform the specific skills of their particular profession in order to pursue the interests of the creditor. The reference to a moral value provides a justification for duties, whether or not those duties are disproportionate to the compensation for them or are imposed without any compensation at all, simply to protect the weaker party. However, elements of distributive justice require social recognition of the fact that public law must provide (incentives, benefits, advantages). Otherwise the duties imposed on a private individual may be interpreted as expropriation or punishment. Of course, solidarity should not become a synallagma, but it still requires a degree of reciprocity, which is a social response. In conclusion, distributive justice remains in general a duty and prerogative of public law, and one should not overload contract law, but contract law can be made to cohere with it through the provision of rules consistent with this purpose.
Nicolussi, A., Etica del contratto e "Contratti 'di durata' per l'esistenza della persona", in Nogler, L., Reifner, U. (ed.), Life Time Contracts: Social Long-term Contracts in Labour, Tenancy and Consumer Credit Law, Eleven International Publishing, Den Haag 2014: 123- 167 [http://hdl.handle.net/10807/56842]
Etica del contratto e "Contratti 'di durata' per l'esistenza della persona"
Nicolussi, Andrea
2014
Abstract
To refer to the social dimension of a contract is to challenge the idea that a contract is simply an act of autonomy (self-determination). However, if a certain degree of heteronomy can coexist within a contract, the different strands must be identified in order to render this coexistence sustainable. The contract is, in reality, an expression of the autonomy and individual responsibility of those, who, in the act of concluding a contract, are consciously bound by that act. What is required is a solution that does not distort the essential nature of the contract, but instead determines the scope of intervention, conditions and procedures that are compatible with the concept of the contract that can be integrated in the neo-institutionalist model that characterises the law in Europe after the crisis of pure normativism. From an abstract point of view it is possible to hypothesise two complementary strands, which are not necessarily incompatible, in order to fully understand the social dimension of contracts. indisputable heteronomy based on the legislative power of the majority. An addition to the contract by reference to moral values, justified by the fact that contracts are acts of social relationality and legally binding. Thus, the moral values that are considered integral elements of contracts are to be intended as ethical–legal values, that is, values of an implicitly dual nature, being both moral and legal. In the first case, the social dimension could seem to be an authoritarian intervention in the contract, resulting in expropriation with a punitive effect on certain categories of people to the advantage of others. In the second case, the intervention is less authoritarian and can be explained intersubjectively. Indeed, autonomy is not purely arbitrary, because contracts operate within a social context and consequently must take into account a measure of morality. They are not merely private affairs, but also juridical, and so must be applicable to the general rationality of the law. The law is tertium related to the parties, and when they seek enforcement of their contract they accept this third dimension. This concept is pan-European and concerns not only procedural rules but the content of the contract as well. In certain countries it is more explicit than in others, such as in England, where the courts work with so-called implied terms. With regard to moral values, I wish to emphasise legalised moral values. Moral values become legal principles and are therefore subject to the test of reasonableness and the need to establish coherence with other principles. There is no place in the law for fundamentalism of any sort, ethical, religious or even economic. Two fundamental issues relating to Reethisierung should be highlighted: 1 justifying duties without compensation, these being generally purposes based on the principles of solidarity (safeguarding good faith and the weak generally). This view proposes a justification closer to the idea of autonomy as a social facet of cooperation. Everybody relies on a general principle of ethics when they enter into a relationship with another. From a general perspective, the rules derived from moral values are not merely authoritarian decisions, but products of intersubjective research in the field of the social experience of values. In particular, this should be valid regarding ‘basic necessity life-time contracts’, such as contract of labour, loan for the purchase of a house, guarantee in favour of a family member, tenancy for housing, healthcare contracts, etc. Those are contracts that usually last for a long time of life and regard basic needs of people. 2 establishing boundaries demarcating the tendency towards universal commodification and an extension of the market into the voluntary sector (so-called third sector). Creating or leaving the condition unmodified in order for gratuitous acts to be realised. Only the first issue will be examined in this abstract. It is not true that bilateral contracts are ethically indifferent, as Max Weber and many others maintain. Canaris stressed the link between bilateral contracts and what we can call Freiheitsethik. Bilateral contracts are an application of the principle of commutative justice in a formal sense (sinallagma in a subjective sense), and thus they are tools of self-determination and pluralism. There is also a certain sense of dignity implicit in the meaning expressed in the famous quotation from Adam Smith: «It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest. We address ourselves not to their humanity but to their self-love, and never talk to them of our own necessities but of their advantages. Nobody but a beggar chooses to depend chiefly upon the benevolence of his fellow-citizens» A. Smith, An Inquiry into the Nature and Causes of The Wealth of Nations, Liberty Press, Indianapolis 1981, 26-27. Dignity is intended as economic independence and willingness to pay what one party requests from another. The ethics of the contract cannot, however, simply be reduced to this. If commutative justice in a formal sense may be considered to be an instructive aid in explaining, in part, the fundamental principles pertaining to the concept of the social contract, it does not explain everything. At least two questions remain unanswered: a. Why at the time of the social contract did the wolves agree to establish a contract with the lambs? When the strong man respects the weak man a moral issue is raised; otherwise the strong take complete advantage of their strength. In a nutshell, it can be said that the metaphor of the social contract is not sufficient to resolve this paradigm. b. Why does the creditor trust the butcher not to supply him with rotten meat or the physician to cure him not only for remuneration (creditor in the literal sense means he who trusts, as Gläubiger derives from glauben)? Are we sure that all professionals, or the majority of them, carry out their work only to receive remuneration and not also because of the fact that they have pride in a job well done? Compensation cannot explain all the rules of obligation. For instance, the rule that the creditor may not cancel a debt without the consent of the debtor. Iustitia commutativa is only a part of the iustitia involved in contracts. Ultimately, as a metaphor of civilisation, we should take into consideration the inherent ties to the concept of social contract, the dimension of ‘care’ that Heidegger proposed as the basis of humanity. It is not just a question of freedom, but also the idea of taking care of others. In other words, there is not just one paradigm, but rather two: one that refers to the social contract as a framework for the formal freedom of everybody, and the paradigm of the family in the generic (not necessarily traditional) sense of solidarity (there is now reference to maternalism, or maternage in French, in order to avoid the ambivalence of the concept of paternalism), which means ensuring that the weak are not further weakened in a social and economic sense. This point of view is typical of post-Auschwitz constitutions like the German and Italian ones, which provide for formal and substantive equality. This is undoubtedly a crucial step. Formal equality and substantive equality must cohabit, especially when we refer to contracts in the field of autonomy. If we consider that cohabitation, that is, the idea of a general protection of the weaker party of a contract, is absurd because every contract has a stronger party and a weaker party, the logical result would be the elimination of contracts. It is therefore essential that a formal procedure be established to provide general rules applying to contracts in circumstances where a party may be typically in a stronger position and to protect typical categories of people such as workers or consumers, who are formally (by statutory law or socially) considered the weaker party. Having once established the limits to the contractual protection of the weak, we can continue the discussion on the moral perspective of contracts; the arguments relating to moral aspects can be diagnosed in a more rational manner. According to the continental tradition of law, there remain rules allowing moral points of view to filter through into the contract. Leaving aside the protection of gute Sitten (buoni costumi), e.g. § 138 BGB, good faith is the most essential principle. Fides means trust, reliance on the morality of the other party. We assume the existence of an ethical code that provides a set of criteria that can be applied to assess the behaviour of both parties. In the Italian code as in the German civil code, good faith is already enshrined as a guiding principle during the pre-contractual period when both parties are still negotiating. It should be noted that good faith introduces the fundamental principle of Diskursethik – in the sense of Habermas and Apel – between the parties. Both have to communicate or act in good faith, and in good faith they have to understand each other. Usually we refer to procedural fairness for these types of rules. Duties of information, of clare loqui (speaking clearly), are well established; in English law we should remember the duty of confidentiality (for instance in the Seager vs Copydex case). However, good faith can also provide substantive fairness. The development of the Unzumutbarkeit (inesigibilità) is highly significant, a limitation on the creditor’s claim when the performance of an obligation conflicts with another duty that is more important from a constitutional perspective. This perspective is of particular interest in the context of the duration of contracts that may infringe upon the relationships of the debtor, especially in family relationships. The principle of specific performance (adempimento in natura, Naturalherstellung) is also a rule based on ethical values. The duty is a categorical imperative without the ability to opt for damages instead of performing the obligation. I wish to emphasise, obviously, the efficient breach theory that provides for “[t]he view that a party should be allowed to breach a contract and pay damages, if doing so would be more economically efficient than performing under the contract.” The duration of the contract is the framework in which an ethical approach is more appropriate, and we should note three points. One is that when a relationship lasts for an extended period it creates reliance and proximity. This is valid, even though one party is an enterprise; otherwise we create a moral shield in favour of people who take advantage of the enterprise and conceive the enterprise as a machine in which people are mere cogs to be exploited. Moreover, regarding ‘Basic Necessity Life-contracts’, the extended period tends to aggravate the differences between a professional party (an enterprise) and a person who contracts for personal purposes (labour, loan for the purchase of a house, guarantee in favour of a family member, tenancy for housing), especially in the case of a change in circumstances, given that an enterprise is more able to calculate risks and administer their costs than are non-professionals. Finally, the different relationships may be inextricable, and in certain cases we can speak about contractual links (collegamento negoziale, Verbundene Verträge): for example, labour, tenancy, loans, family relationships. Art. 33 Charter of Fundamental Rights of the European Union provides for the principle of reconciliation between family and professional life. In this perspective, the contract of labour ensures the sanctity of maternity; evidently the duty to the family (child) is more important than the duty to perform. The law restricts the right to withdrawal of a tenancy in order to protect the rights to housing not only of the tenant but also of family or cohabitants with children. We can imagine a right to suspend payment of instalments on a loan in cases of redundancy through no fault of the debtor when the worker has to provide for a member of the family (to pay school fees, to pay medical bills for themselves or for a member of the family). In cases of a guarantee by a non-professional person in favour of a member of the family, the bank has at least a duty to keep the guarantor regularly updated as to the financial circumstances of the debtor and the consequences the guarantee would have to share in order to allow the guarantor to terminate the contract before default proceedings have been initiated, when circumstances have varied too greatly from the initial contractual obligations. Scholars tend to be too rigid in their distinction between the purposes of private law and those of public law. The first must provide rules in order to promote commutative justice and Freiheitsethik, while only public law has the obligation to apply distributive justice. This distinction appears to me to be too rigid, and I would prefer a more systemic view, stressing that the relationship between the two distinctive components of the law should be more coherent. Private law is able to pursue some distributive justice under certain conditions. A clear definition is needed of the subjects (weak parties) who are protected and the subjects who should be protected. Interests or goods to be protected should also be clearly defined. There should be goods of recognisable intrinsic value (necessary goods like water, schooling, housing, health, etc). Some are referred to as common goods (commons) because they relate to the fundamental rights of people and thus should not be subject to exclusive possession, but instead be governed according to the law so that everyone can benefit from them. Self-determination in a solidaristic system cannot be the unique criterion for evaluating the value of goods. In particular, it is essential to specify a number of constitutional values related to certain professions. Bankers, for example, must execute due diligence with respect to the savings of non-professional people to ensure that those savings are safeguarded, since savings are a good protected by the law (an example is the Italian constitution: see art. 47. La repubblica incoraggia e tutela il risparmio in tutte le sue forme, disciplina, coordina e controlla l’esercizio del credito). Thus, certain rules should be taken into consideration in order to promote ‘responsible credit’ as a paradigm for measuring the performance of the good banker (as Reifner suggests). This could be considered as an application of good faith that requires the professional debtor to perform the specific skills of their particular profession in order to pursue the interests of the creditor. The reference to a moral value provides a justification for duties, whether or not those duties are disproportionate to the compensation for them or are imposed without any compensation at all, simply to protect the weaker party. However, elements of distributive justice require social recognition of the fact that public law must provide (incentives, benefits, advantages). Otherwise the duties imposed on a private individual may be interpreted as expropriation or punishment. Of course, solidarity should not become a synallagma, but it still requires a degree of reciprocity, which is a social response. In conclusion, distributive justice remains in general a duty and prerogative of public law, and one should not overload contract law, but contract law can be made to cohere with it through the provision of rules consistent with this purpose.
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