Riezlern, 25th february 2014 Legal certainty and contractual arrangements Benoît Pontoizeau Master 2 student, Université Paris Ouest Nanterre La Défense.
1. Some definitions : the legal certainty ● A fundamental principle in the EU – ECJ case-law ● Bosch judgment in 1962 recognized the principle of legal certainty. ● Dürbeck judgment in 1987 recognized the principle of legitimate expectations, which is part of the concept of legal certainty. – ECHR case-law ● Marckx judgment in 1979, recognized the principle of legal certainty and estimats that it is inherent in the right of the european convention for protection of human rights.
1. Some definitions : legal certainty ● A substantial definition – predictability, which means accessibility and anticipation possibility thanks to information and consultations procedure ; – stability, which should not be absolute and means that normative changes should be provided by law ; – the guarantee of the respect of the law and subjective rights, which means effetiveness and moderation in law enforcement.
1. Some definitions : legal certainty ● A double faced principle – the « public » legal certainty, which rules the relationship between administration and citizens – the transactions security, understood as the contractors' confidence for the legal and factual environment they have, because of its predictability
1. Some definitions : the contract ● Legal definition Kelsen : « the fact called contract is composed of two or several persons matching their willing declaration on a particular behavior of these persons” . Moreover he stresses that “to have a legally compulsory contract, which means to create norms that contractors have to respect, the legal system can impose a particular form” .
1. Some definitions : the contract ● Economic definition Brousseau : – the contract is a surrogate of the market – for an economist the question of the legality of the contract does not matter, because the contract is a fact, the simply result of the personals willing interaction.
2.Legal certainty & contractual arrangements ● 2.1 At the formation of the contract – the differents issues – asymmetric information – state of nature – substituability – Managing the uncertainty – clauses – the example of stabilization clauses
2.Legal certainty & contractual arrangements ● 2.2 Enforcement of the contract – Correction of the contract – correct the desequilibrium – Habermas point of view on procedures – Accepted zones and discussion zones – Bar Gill studies – The psychological part in the act of contracting
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