Perusoikeudet, kohtuus, hyvä tapa ja sopimusoikeudellisen kokonaisharkinnan kontrolloitavuus
Avainsanat:
perusoikeudet, sopimusoikeus, kohtuus, hyvä tapa, ennakoitavuus, kontrolliAbstrakti
Lakimies-aikakauskirjan nuorten kirjoittajien palkinto 2018
Constitutional rights, fairness, morals and the control of contract law discretion
From a critical legal point of view, a judge always has to deal with certain policy issues when interpreting open-ended contract law principles such as fairness and morals. The problem with the judicial control of discretion remains the same whether the judge refers to contract law principles or to the horizontal effect of constitutional rights. This is because there are tensions and incoherence both in contract law and in constitutional law.
Even though contract law has already adapted to the welfare state without reference to the horizontal effect of constitutional rights, the author argues that these rights often provide the most effective judicial support and legitimacy for many current material interests. It can be stated that constitutional-rights-based argumentation contributes to the versatile and transparent balancing of interests in hard contract law cases.
This does not mean that the Constitution could precisely guide actual balancing of interests in contract law. Instead, the author argues that constitutional rights contribute to the control of contract law discretion indirectly. References to these rights highlight how the court has considered the many-sided policy dimensions of the cases. This makes it easier to critically evaluate the contract law rulings.
