Functional Background - Definition and Types of Legal Purpose
10 important questions on Functional Background - Definition and Types of Legal Purpose
How should non-mandatory rules be designed?
To reflect the typical intentions of the parties.
What is another consequence of non-m rules' reference to parties' typical intention?
A strong empirical component.
In contrast to non-m rules, what do mandatory rules to?
They enforce the purpose of law even against parties' intentions.
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What are the first category's subdivisions?
- prohibitions in the interest of public security (sale of weapons and drugs)
- protection of aspects of human personality (invalid ctts that violated human dignity)
- family related values (monogamy, testamentary portion)
- anti-trust law for efficient competition
Concerning the second category, why must the decisions of the contracting parties be restricted?
In many cases, third parties are affected by these decisions and must be able to rely on them.
Examples from the second category.
Clauses of legal form under property and corporate law.
Concerning the third category, what are the most important fields of social protection in Europe?
- Tenancy law
- Labour law
- Consumer Protection Law
- Non-discrimination rules.
On what assumption is social protection based?
That the weaker party is unable to effectively enforce its rights against the stronger party.
Why must social protection rules be enforced also against the weaker party's will?
Otherwise the stronger party could use its power of bargain to induce the weaker party to derogate its own protection.
What is the other aspect of social protection in priv law?
It pertains not only to the contents of a contract but to the freedom to contract overall, ie when obligation to contract safeguards social participation of the weaker party.
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