Public policy and good morals

All European legal systems make provision for the ineffectiveness of contracts contrary to public policy and/or good morals. These general grounds of ineffectiveness are only applied in the absence of more specific grounds of unlawfulness of contracts. This book explores the extent to which English and Dutch legal systems converge (or diverge) in the application of rules of public policy and good morals that result in the ineffectiveness of a contract. The author analyses different types of contracts which are “clustered” together on the basis of certain common substantive characteristics. These clusters concern (i) restrictions on human rights; (ii) the commercialization of human body and relationships; (iii) internal functioning, foreign relations and security of the state and (iv) other potentially exploitative relations. Using an “interest based comparative methodology” the types of contracts that constitute each cluster are examined under English and Dutch law to identify the convergences and divergences. Using the results of the comparative analysis, the author also highlights certain insights that may be derived for the harmonisation of European contract law. The book further addresses three considerations for the future: (i) whether public policy and good morals in English and Dutch contract law should be retained as grounds of contractual ineffectiveness; (ii) how judges should approach public policy and good morals as grounds of contractual ineffectiveness in the present day; and (iii) how the harmonisation of public policy and good morals as grounds of contractual ineffectiveness should take place at the European level.

Dissertation: http://hdl.handle.net/11370/818a49a9-e406-4eb1-9764-0437d3cfd6f5