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Constitutionalization of European Private LawXXII/2$
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Hans Micklitz

Print publication date: 2014

Print ISBN-13: 9780198712107

Published to Oxford Scholarship Online: May 2014

DOI: 10.1093/acprof:oso/9780198712107.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 24 September 2021

On the (In)compatibility of Human Rights Discourse and Private Law

On the (In)compatibility of Human Rights Discourse and Private Law

(p.26) 2 On the (In)compatibility of Human Rights Discourse and Private Law
Constitutionalization of European Private Law

Hugh Collins

Oxford University Press

Having assessed the growing impact of human rights law on private law in many jurisdictions, the first question is how to best understand the constitutional relationship between public and private law in the context of the horizontal impact of human rights on parties to private or commercial transactions. It is argued that whatever the constitutional framework adopted, human rights should only be permitted an indirect effect on the evolution of private law and should not be permitted to create directly effective rights. Since both parties to private law disputes may invoke rights, there is a need to balance rights, which, it is argued, should proceed under a double proportionality test. It is doubted whether the impact of human rights is likely to strengthen the interests of weaker parties in contractual disputes, but in general the application of rights to private law is welcomed because it is likely to promote a positive conception of freedom or autonomy.

Keywords:   human rights, private law, horizontal effect, proportionality, indirect effect, weaker party, autonomy

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