Internal and External Restrictions of the Freedom of Contract
| Project/Area Number |
13620058
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| Research Category |
Grant-in-Aid for Scientific Research (C)
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| Allocation Type | Single-year Grants |
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| Section | 一般 |
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| Research Field |
Civil law
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| Research Institution | Waseda University |
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Principal Investigator |
UCHIDA Katsuichi Waseda University, School of International Liberal Studies, Professor, 国際教養学部, 教授 (10063794)
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| Project Period (FY) |
2001 – 2003
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| Project Status |
Completed (Fiscal Year 2003)
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| Budget Amount *help |
¥1,600,000 (Direct Cost: ¥1,600,000)
Fiscal Year 2003: ¥700,000 (Direct Cost: ¥700,000)
Fiscal Year 2002: ¥900,000 (Direct Cost: ¥900,000)
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| Keywords | Freedom of Contract / Contractual justice / Essential obligation of contract / Good morals and public policy / Market-individual intervention / Consumer-welfare intervention / Internal restriction of the freedom of contract / Protection of socially weaker parties / 組織規範としての契約 / 契約規制における類型的相違 / 契約締結後の事情変更と組織の改編 / 契約関係の優越 / 契約における公正と福祉 / アメリカ契約法 / 民法内在的制約 / 契約自由の外在的制限 / 現代福祉国家論 / 弱者保護 / 「第3の途」 |
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| Research Abstract |
This research clarifies internal and external restrictions over the freedom of contract. The contemporary welfare capitalist countries intervene into a market economy system in order to achieve socio-economic purposes. The background reasons, the methods to intervene, and the degree of intervention differ from country to country, however, most researchers agree that there are three different types, based on the differences of de-commodification and stratification of social services. In the field of legal studies, with regard to intervention through legislation and court decisions, there are two different types, formalism and realism. Within the realism intervention, market-individualism and consumer-welfarerism can be recognized.
According to the results of recent research, the freedom of contract has been restricted by traditional ideals of equity and fairness until the end of 18th century. The concepts of a contractual justice, a true nature of contract, and an essential obligation of contract were used in French civil law. In German civil law, principles of the good morals and public policy were used and internal restrictions of contract are included in German Civil Code. In a contemporary welfare society, there are many examples of external restrictions over the freedom of contract based on the idea of the protection of socially and economically weaker parties. In French and German legal studies, these external restrictions are provided by special legislations. The separation of internal and external restrictions of the freedom of contract was not known in Japanese legal research, this research clarified the importance of this separation or classification.
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Report
(4 results)
Research Products
(2 results)
