2 Private Law and Fundamental Rights: a Sceptical View

Abstract

The applicability of fundamental rights to private law is a vexed question. Over the last decade or so, many countries have seen a growing influence of fundamental rights in contract, tort and property law. The aim of this chapter is to reflect on the desirableness of the constitutionalisation of private law and to show the adverse effects of this development. The focus is on the normative questions of the desirability of fundamental rights influence and the best way in which this influence is accommodated. The chapter presents a definition of constitutionalisation of private law. It is highly important to define what is meant by it before saying anything about its value. The chapter then contains the main arguments why fundamental rights have only limited value in deciding private law cases. Finally, and by way of a general conclusion, the room still left for reference to constitutional rights is discussed. Keywords: constitutionalisation; contract law; fundamental rights; private law; property law; tort law

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