Book contents
- Frontmatter
- Contents
- Table of panels
- List of figures
- Preface
- Acknowledgments
- Terminology
- Table of Latin phrases
- List of abbreviations
- Table of cases
- Table of cases (European Court of Justice, numerical order)
- Table of legislative instruments
- PART I STARTING OFF
- PART II JURISDICTION
- PART III FOREIGN JUDGMENTS
- PART IV PROCEDURE
- PART V CHOICE OF LAW
- 22 Introduction to choice of law
- 23 Torts
- 24 Contracts: the principle of party autonomy
- 25 Contracts: legal policy and choice of law
- 26 Contracts: regulating business, protecting employees and helping consumers
- 27 Foreign currency
- 28 Property: tangible movables
- 29 Contractual rights and property interests – I
- 30 Contractual rights and property interests – II
- 31 Contractual rights and property interests – III
- PART VI EXTRATERRITORIALITY
- Bibliography
- Index
25 - Contracts: legal policy and choice of law
from PART V - CHOICE OF LAW
- Frontmatter
- Contents
- Table of panels
- List of figures
- Preface
- Acknowledgments
- Terminology
- Table of Latin phrases
- List of abbreviations
- Table of cases
- Table of cases (European Court of Justice, numerical order)
- Table of legislative instruments
- PART I STARTING OFF
- PART II JURISDICTION
- PART III FOREIGN JUDGMENTS
- PART IV PROCEDURE
- PART V CHOICE OF LAW
- 22 Introduction to choice of law
- 23 Torts
- 24 Contracts: the principle of party autonomy
- 25 Contracts: legal policy and choice of law
- 26 Contracts: regulating business, protecting employees and helping consumers
- 27 Foreign currency
- 28 Property: tangible movables
- 29 Contractual rights and property interests – I
- 30 Contractual rights and property interests – II
- 31 Contractual rights and property interests – III
- PART VI EXTRATERRITORIALITY
- Bibliography
- Index
Summary
Introduction
In the previous chapter, we said that the basic principle of contract law is to give effect to the intention of the parties. There is, however, another principle. In certain circumstances, the law rejects what the parties agreed on, or it insists that the contract should be subject to terms they did not agree on. This is because the law pursues policy aims, and it pursues these aims (in many cases) even against the will of the parties. The policies can have many objectives: political (for example, sanctions against a foreign country); economic (exchange controls); cultural (prohibiting the export of works of art) and social (anti-discrimination legislation). In many cases, the justification for imposing legal rules on the parties is that the interests of society outweigh those of the individual; in others, it is simply the desire to help parties regarded as being in a weak bargaining position (for example, consumers). In all situations, however, the result is the same: what the parties agreed on is overridden by the law.
If freedom of contract is restricted in the domestic context in order to achieve these objectives, it would be surprising if the same did not apply in the international context. The freedom of the parties to choose the applicable law should not permit them to evade legal policies regarded as overriding. However, different considerations might apply in the international context, so that some rules that cannot be derogated from in the domestic context may be subject to derogation in the international context.
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- Chapter
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- International Commercial LitigationText, Cases and Materials on Private International Law, pp. 599 - 632Publisher: Cambridge University PressPrint publication year: 2009