Tendencies in legal development of mandatory law - Extension of the scope of mandatory law in the 20th century
15 important questions on Tendencies in legal development of mandatory law - Extension of the scope of mandatory law in the 20th century
What happened to the scope of mandatory law in the 20th century?
It has widened.
What is the main reason for this development?
The notion of equality of bargaining power between parties lost much of its thrust. Perception of situations of (potential) imbalance caused state to intervene in favour of the weaker parties.
What is the German example of necessary intervention in the freedom to ctt during the post-WWII?
Mandatory rules in tenancy agreements as response to imbalance caused by house shortage. Aim was the protection of tenants. Around 1960s, when the housing offer increased again, regulation of this sort of ctts relaxed, though fundamental rules remain in place (limits on termination by lessor 573-574c BGB, increase of rent 557-561 BGB).
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Is there similar protection to tenants in England?
Landlord and Tenant Act 1985 contains mandatory provisions.
In which other case is there a party in weaker bargaining position than in tenancy agreements?
Labour law. Both characterize a relation of dependancy (on accommodation and salaries respectively).
On which considerations is based the control of standard contract terms presented by one party to another?
Due to the number and complexity of terms, the other party is normally incapable of adequately examining and negotiating every one of them.
What characterizes the proposing party's superiority re this kind of imbalance?
Superiority of control and information.
What is excluded from this imbalance and, hence, from judicial review?
The individually negotiated terms.
How was review of standard business terms developed in Germany?
It was developed by the Supreme Court based on general good faith provisions from the BGB (242). It broadened the scope of 134 and 138 BGB. Specific statute on review of standard terms nacted in 1977 and incorporated into the BGB in 2002: 305-310.
To what are 305-310 BGB applicable?
b2c and b2b ctts.
In English law, what was the first statute to introduce a standard of reasonableness?
Misrepresentations Act 1967.
What did this act comprise?
Disclaimer clauses and remedies resulting from pre-ctt misrep (regardless of individually negotiated or not, b2c or b2b).
What is the role of EC Law re consumer protection?
The comprehensive penetration of private law by mechanisms of consumer protection in Germany, the United Kingdom and other European countries can be traced back to the numerous EU directives.
Why can the legitimacy of non-discrimination rules be questionable as long as no public cos or monopolistic cos are involved?
Inevitable possibility of circumvention by dishonest parties while increasing costs for honest parties due to querulous claims.
What is the similarity between consumer protection and anti-discrimination laws in Europe and how do they differ from labour and tenancy rules?
Both are largely influenced by EU Law, differently from labour and tenancy rules, which reflect national legal systems' attitude to social redistribution.
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