Immorality of Contracts in Europe

To what extent is there consensus on the handling of contractual morality in Europe and what way forward can be envisaged for the debate on this topic? Four approaches to the question of morality in European contract law are investigated in this paper. These provide a chronological overview of the developments in this field, as well as insights into legislative, judicial, political and academic contributions to the development of European contract law. Firstly, the handling of diversity in EU legislation and case law is sketched; a deferential approach emerges here, in which certain common values or principles are defined, but the specification in legal rules is mostly left to national legislatures and judiciaries. Secondly, academic endeavours to further harmonise contract law in Europe are addressed, in particular the Principles of European Contract Law (PECL) and Draft Common Frame of Reference (DCFR); as the name of the first instrument indicates, a more principled approach results from these. Thirdly, the reception of this academic work in the European Commission’s proposal for a Common European Sales Law (CESL, proposed in 2011, withdrawn in 2015) is assessed; the choice not to include any rules on immorality and illegality in this document stands out and may be seen as a missed opportunity to facilitate a debate on values underlying European integration. Finally, the approach adopted in the Common Core project is compared to the other three in order to clarify what a case-based comparative method can teach on moral limits expressed in the rules of contract law that govern the European internal market. In conclusion, it is submitted that the discourse on integration through (contract) law is not and should not be indifferent to questions of morality. While it may be a difficult task to ever establish common rules on immorality and illegality of contracts in Europe, it is important to foster spaces for deliberation of the morality of certain contracts in legislative, judicial and academic processes.