Research leader: Nicolas Carette
Overview
Private law upholds the principle of personal autonomy. The Code civil (Code Napoléon of 1804) limited this principle only in a few areas of law. Although general private law has since become more rigid through numerous provisions of mandatory law (or even public policy), more recently autonomy is coming back into focus, including in the Belgian codification wave, where the autonomy is the starting point of, inter alia, the law of obligations and contracts and property law (Art. 5.3 and 3.1 Belgian Civil Code). In this research line, (the boundaries of) private autonomy and the binding force of (legal) acts and (legal) facts play an important place, in the various areas of national, European and international private law.
This research line is focused on one form of private ordering: contractualisation. We investigate both contracts and unilateral legal acts in the different fields of national, European and international private law. Our perspective is the paradigms of the law of obligations, particularly private autonomy and the (binding) effects of legal acts and legal facts.
Our general purpose is to research the scope and boundaries of personal autonomy in private law. We conduct research into private autonomy vis-à-vis mandatory or default statutory rules and regimes in State regulation, In which consumer protection will also receive attention. We also investigate the relationship between contracting parties and with third parties. This includes, for example, issues of legal certainty and reasonableness and fairness (e.g. unjust enrichment) and liability (for legal facts: see also research line Liability and Accountability; for legal acts, special attention goes to the concept of fault). Autonomy concerns both the freedom of will and the legislator's presumed or sometimes even normative will of those involved, as reflected in legislative provisions of supplementary or mandatory law.
Debates
Against that broad background, we have – inter alia - the following debates and specific research interests.
Firstly we investigate the contractualisation of family law and family property law from two different perspectives, and in light of the traditional division between contract and status. On the one hand, we approach family law (status) from the paradigm of the law of obligations (contract). This research aims to determine the extent to which family law can be considered to be contract law, and potential opportunities for private family governance. On the other hand, we investigate which family law paradigms may be applied to contract law. Our research here aims to identify how property law and contract law may be used to privately regulate relationships in the same way as family relations, for example between de facto cohabitants. This research will also allow us to redefine the contract/status dichotomy in general.
Additionally, we also challenge the different takes on contractualisation of family relationships (in family law and family property law) and economic private relationships (in the law of obligations and contract law) from a gender perspective. Our focus is on power dynamics in family and economic relationships and on the legal techniques that regulate these. We compare the legal mechanisms used for regulating power structures at the start of the legal relationship; in case of changed circumstances; and at the end. We then critically assess the similarities and differences between the legal regulation of family relationships and economic private relations from a gender perspective, using insights and methodological frameworks from gender studies.
Secondly, we investigate the right to dispose of (and the loss of) subjective rights and mandatory legal restrictions. Again, we research these issues both in terms of the relationship between State and citizen and in terms of the relationship between citizens themselves. Particular points of interest will be: the protection of property and relevant public law restrictions (equality of citizens before public burdens and article 1 of the First Additional Protocol to the ECHR); the application of property paradigms to the human body and to bodily parts (see also research line Personality Rights); boundaries and restrictions in inheritance law (mandatory inheritance rights); restrictions on land use; personal rights and property rights associated with immovable goods; and evolutions in housing; wealth shifts between individuals.
Specific Research Questions
- What are the scope and boundaries of contractual freedom in inheritance law and in matrimonial property (and in property relations between cohabitants)? How can estate-planning techniques, including trusts and trust-like figures, be used to ‘contractualise’ family law and to ‘familiarise’ contract law, e.g. by creating ‘community property’ between de facto cohabitants?
- What balance can be found between contractual freedom and state regulation of the insurance market, particularly in light of the need for transparency in insurance contracts from a consumer law perspective and to prevent reckless behaviour (cf. also research line Liability and Accountability)?
- What legal techniques are used to regulate power structures in family relationships and economic private relationships? To what extent are the different legal regulation of power dynamics in family relationships and economic private relationships justified from a gender perspective?
- Can an exceptional breach of the equality before public burdens principle justify risk-based liability (without fault)?
- Which contractual paradigms can we apply to rights of self-determination over the human body, bodily parts and interventions on the body (including organ transplants, patentability of stem cells and clinical trials).
- To what extent can contractual rights be lost (e.g. extinctive prescription, estoppel, waiver of rights, abuse of rights)?
- To what extent do mandatory protection rules in contract law (e.g. via consumer law) deviate from the default law, and does this modify the default law?