Riezlern, 25th february 2014 Legal certainty and contractual - - PowerPoint PPT Presentation

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