Avtalsfrihet - rätt till avtal: En nordisk undersökning om kontraheringsplikt till förmån för privatpersoner

Tutkimustuotos: OpinnäyteLisensiaatintutkielma

Abstrakti

Summary:

1 The object of the study

In the Nordic legal literature, compulsory contracting is understood as that situation, in which a single contract is concluded after an one-sided expression of intent is directed to a person conducting a certain business. It is understood that the one who is conducting the certain business is, in effect directing an offer to the public (as in common callings). This is founded on a certain norm and, thus, the one who wants to make a contract (as an acceptor) is not required to wait for an expression of intent from the offeror any more. Generally, a norm of compulsory contracting is considered to exist in situations where a public institution, or a business which has a monopoly, offers goods or services. Such a norm is usually found in statutes where the obligation is explicitly stated. The goods or services concerned are usually of the kind that are considered essential for the daily life in the society of today.
In order to understand the contract law institution of compulsory contracting, one has to go to the foundations of contract law as a part of the private law system. However, there are other dimensions to the character of compulsory contracting. For instance, when different trades or sectors in the society in which competition is inhibited are being examined, a trade law aspect arises. Moreover, due to the obligatory element of compulsory contracting, one has to examine the other parts of the public law. The borderline between private law and public law has for quite some time now become diffuse. Due to some most recent developments, the borderline is at least in need of replacing and, in fact, these recent developments may lead to a further diminishing in the importance of that line. This is a consequence of the fact that a grey zone in which there is neither traditional administration, nor autonomous contractual relationships in the traditional sense, is expanding. This unfolding is typical not only for the Nordic countries, but is also visible in trends in other European countries to a varied extent. Certain general features are common in the European welfare societies as well as in other countries outside Europe.
Before the economic depression that hit Europe during the 1990's, a deregulation in the field of trade law and a privatisation of the public sector had already been initiated. To a certain extent, the depression further speeded up this process as the welfare societies tried to adapt to the severely diminished resources. This type of process makes its mark in the legal system too. It is a question either of replacing public tasks within the private sector or of only adopting the means of the private sector in the public sector (business accountability). As a result of this, the activity of the civil service is shifting to the conducting of business, and public service is shifting to private law contractual arrangements or, at least to a higher degree than before, it is being priced according to market economy principles of responsibility for profit.
The above-mentioned development will, as a consequence, result in an increased relative importance of contract law within the legal system. A greater part of societal activity is being conducted through contractual arrangements. Pared-down public service is being changed to contracts of services which will result in new regulatory needs. One can expect that such new regulation probably will result in restrictions in the freedom of contract. In the social sector, one may then talk about a new form of social civil law, one that perhaps can be viewed as a kind of privatised social security. Those problems that it is not possible to solve by non-mandatory legislation may be solved by some form of mandatory norms and, in some specific cases, it may be necessary to choose the most powerful solution, i.e., compulsory contracting.
From the point of view of the party who is put under an obligation, compulsory contracting means a restriction, in that his/her freedom to act is being limited. From the point of view of the party that is entitled, that is, the one given the right to obtain a contract, his/her freedom to act is being increased. Thus, one can by compulsory contracting guarantee that some groups of individuals are not denied contracting for essential goods or services.
As a modification of the law of the jungle, the life in a society with a market economy is best characterized as "contract or die". In spite of the fact that the contract holds such a prominent position in the society of today, one can in the legal writing hardly find very much attention paid to those situations in which a potential contracting party has or should have a right to a contract. However, there are numerous situations in which compulsory contracting exists according to a statutory provision. The first question asked in this study is, therefore, in which sectors of the society are statutory provisions of compulsory contracting for the benefit of private persons found. A second question is, whether a general principle of compulsory contracting, one which puts those who offer goods and services to consumers under an obligation, is found in the Nordic countries. The rules of compulsory contracting are connected to the question of the scope of what is known as the "principle of social force majeure". The third question is, therefore, how the rules of compulsory contracting relate to cases in which a consumer has earlier met with social force majeure and then has avoided some obligation to his/her contractual party.
Reforms that introduce business accountability and privatisation of administrative functions in civil service, as well as reforms directed toward deregulation, influence the object of this study. Those issues that arise in considering compulsory contracting and the questions of concern here, are complicated, especially considering such reform processes and changes. It is still more difficult to survey the process when it is, as here, a question of studying compulsory contracting comparatively in Denmark, Finland, Norway and Sweden. In the different sectors of society or lines of businesses studied, reforms have been enacted to varying extents and levels of intensity. Thus, there is an ongoing and very widespread process of change in the societies in question. This process of change had only just begun during the period of this research project, and it has by no means decreased since. Due to these considerations, what is presented here is only a preliminary inventory of the problems identified in relation to the three study questions that were the focus of this research.

2 The Freedom of Contract and Compulsory Contracting

At first impression, compulsory contracting appears to be a paradox, or incompatible with, the freedom of contract which has always been understood as the legal founding principle of the market. In legal writing, freedom of contract and the binding force of the contract are presented as the main principles or elements of contract law in a market economy society. Other freedoms or elements that are mentioned as typical features in societies of this kind are: freedom to establish a business, freedom of competition, freedom of consuming, freedom of association, and the inviolableness of private ownership.
Within contract law, there is a distinction between mandatory and non-mandatory norms. In certain cases, there are no detailed norms that regulate a specific contractual activity. Compulsory contracting and mandatory law in general restrict the extent of the founding principles. However, it is not even possible to think of a society which is solely built on a freedom to conclude any contract, or on a freedom to refrain from concluding contracts at all. Not even during the period of the development of society when liberal economic theory had its widest support during the second half of the 19th century, was there a system that rested on a complete freedom of contract.
During the development from a mercantilist society to a market economy society, there was a gradual transformation of legal regulation, but there were without exception restricting elements in the freedom of contract. Those restrictions have been put into place to take into consideration the public interest where it is in conflict with the interest of individuals. Since the breakthrough of liberalism, the restricting elements have continuously become more widespread, to the point where, in the modern welfare society, there is reason enough to reconsider the foundations of contract law. The restrictions of freedom of contract — compulsory contracting, and the remaining mandatory law to which the invalidity rules and adjustment clause belong — may be perceived in various ways. In the theoretical discussion of the law of contract, the Rechtsstaat view of contract law is distinguished from the welfare state view of contract law. The freedom of contract that has been perceived as the ideal of the Rechtsstaat has been curtailed with mandatory law in order to protect the weaker party. In this study, the general principle of compulsory contracting for the benefit of the consumer is further defined and developed, in order to show that it may operate as an indicator of how welfare state values may become visible in the field of contract law.
In discussions concerning the basic principles of freedom derived from the notion of private autonomy, it has not been stated or specified whose freedom is being defined. Traditionally, it has been perceived as self-evident that the one who is conducting business does so on the basis of his/her private autonomy, and it is on this basis that all the freedoms to establish a business, to own the necessary means, and to decide whether and with whom he/she will conclude contracts, are included. The freedom of contract has thus been perceived unilaterally from the vantage point of business ever since the ideas of economic liberalism were put into practice. Turning this viewpoint around, one may also look at the freedom of contract from the opposite direction — from the point of view of the users. It is then possible to ask what kind of freedom is suitable. The notion of freedom of consuming may be perceived as a qualified form of the freedom of contract, in which one may include certain elements of a right to contract, i.e., compulsory contracting under certain conditions. It is a question of pushing the development in the private law forward in such a way that the positive freedoms of the basic freedoms and rights on the public law side are concretized. The negative freedom of establishing a business is supplemented in this way with a positive freedom. A situation where the two sides of the freedom will be in balance arises. This is a remarkable change compared to the previous situation where only the interests of the business side were satisfied.

3 Survey of statutory provisions

A major part of this study consists of a survey of statutory provisions of compulsory contracting. In the survey, those branches of businesses or sectors of the society which are essential for private persons, and therefore have been objects of regulation, were examined. The regulation in question consists of both contract law provisions of compulsory contracting and trade law regulation. In the first place, the study was concerned with whether there are express statutory provisions of compulsory contracting that apply to the businesses in the branch in question. If that was not the case, then the analysis was next focused on whether the regulation in general is one in which a general principle of compulsory contracting exists in effect. This was necessary due to the fact that compulsory contracting as a legal concept is relatively unknown, and thus the legislator may not necessarily choose this term, even though the intention has been to regulate a duty of a certain category of businesses to conclude contracts under certain conditions.
There are also statutory provisions concerning compulsory contracting, or heavily restricted freedom of contract, that are not applicable to a certain branch but are of a general character. The provisions that were of interest in this context, and therefore were examined, were rules concerning contractual relations in connection with insolvency proceedings and the recalling of hazardous products.
In contractual relations of a lasting character concerning essential goods and services, it is of especial importance that the rules of compulsory contracting, which in fact are intended for situations where contracts are concluded, also extend their impact to contractual relations in force when the business wants to cease the contract. Contracts concerning goods or services which are offered on a continuous basis, such as electricity, water and teleservices, are of a lasting character and they differ, for example, from contracts consisting of separate performances in that "the goods" are consumed continuously and do not remain in storage. For that reason, this type of contract is susceptible to disturbances, which means that interruptions in the delivery as a sanction due to breach of contract such as, for example, a delay in payment, is a measure of deep impact.
Especially when social force majeure occurs, this problem is relevant, since in this case the business finds it should no longer be obligated to continue the contract. Moreover, there are reasons to extend the application of the rules of compulsory contracting to situations of altering the terms of the contract when these are not acceptable from the consumer's point of view. The entrepreneur may not in this case be released from the contractual relationship by causing the contract to cease through referral to a clause of cancellation of the contract. A clause regarding causes for cancellation of the contract may also be unfair and therefore in such a case it is possible to apply the rule of compulsory contracting to censor the behaviour of the entrepreneur as an alternative to the use of unfairness of the clause of cancellation.
In this study the regulation of the following important goods and services were examined:
— electricity, gas and heat,
— water,
— teleservices,
— healthcare,
— housing,
— transport,
— postal services,
— insurance, and
— banking services.
The examination of the regulation of the distribution or supplying of these goods and services resulted in findings of explicit and implicit statutory provisions of compulsory contracts. There are provisions of compulsory contracting for at least some of these goods or services in all the countries concerned and, for certain of these goods or services, such provisions exist only in some countries.

4 Unregulated compulsory contracting

In the survey of regulated branches, certain relevant branches were found which would not have been found in a non-comparative study. If there are statutory provisions of compulsory contracting in one country but not in another, the question of how to explain this difference arises. Usually, when research in legal dogmatics is being performed in the Nordic countries, it is presumed that the legislation of these countries is relatively similar. If provisional compulsory contracting is lacking in a certain branch in one country, one may ask if compulsory contracting is still to be found in the other country in the form of an application of the general principle of compulsory contracting. Then it is necessary to examine the prerequisites for the application of a norm of compulsory contracting that are required in specific situations. These prerequisites may be mutual for the different countries, regardless of whether the compulsory contracting is based on legislation, or is found applicable as a general principle. Therefore, the benefit of this part of the study lies foremost in the fact that those situations in which there is some motivations for a rule of compulsory contracting to be applied are identified.
In a society in which the division of labour has been taken very far, individuals in their daily life are completely dependent on co-operation with other individuals, institutions and associations. Those who are conducting a business that is directed to the public assume a specific position, because they have chosen such a role in the society. In the system of general rules and exceptions, the widened or qualified freedom of contract constitutes the general rule, while the exceptions consist of rules concerning when entrepreneurs have the right to refrain from concluding contracts. By placing the right of denying as an exception, the questions asked are put in reverse order. Instead of asking whether a person has a right to conclude a contract, one is expected to ask if a business really should be permitted to deny a contract. Private persons have a legitimate claim to require that the entrepreneur reject acceptance of a contract only on the basis of precise reasons. Both when there is reliance on the general principle of compulsory contracting, and when there are statutory provisions of compulsory contracting, it is uncertain on what grounds the business may deny contracting. The extent of compulsory contracting is very dependent upon the legitimate grounds for denial. However, given the length of the presentation it would require, it is not possible to present here a specific analysis of these grounds.
As the situation stands today, there is an increased need for rules of compulsory contracting for several reasons. One effect of the economic depression is that it is more usual now than previously for private households to have payment difficulties. Yet, the need for essential goods and services is relatively constant and unconstrained by market conditions. Cuts in the social sector increase the pressure for flexibility on the creditors' side. If the creditors are inflexible out of fear of increasing credit losses, an increasing need for statutory provisions of compulsory contracting arises, rather than the application of the general principle.
It is perhaps possible to presume that the general principle of compulsory contracting is applicable to contracts within a certain branch of contracting, even in those countries where there are no statutory provisions of compulsory contracting concerning contracts in that branch, when this same branch is regulated in some of the other countries. Already the similarities between the countries speak for such a view of the matter. Obviously, there are also branches in which there are not, in any of the examined countries, statutory provisions of compulsory contracting. One could argue in favour of an application of the general principle, or an introduction of compulsory contracting through legislation, for those branches that supply essential goods or services. An example of such goods would be groceries or other products of daily use in a household.

5 Conclusions

It has not been possible to carry out a study which could provide complete answers to the questions asked, given their complexity. The first question was, in which sectors of the society statutory provisions of compulsory contracting are found. A partial answer to that question is that explicitly regulated compulsory contracting, as a restriction of the freedom of contract in a traditional sense, assumes a more central position than, on superficial examination, one might think.
The second question in this study was, whether a general principle of compulsory contracting is found in the Nordic countries. It can be framed more exactly as follows: Is it possible to rely on a general principle of compulsory contracting within a country and in a certain case when there is no statutory provision of compulsory contracting? The answer to this question is not in every particular case an absolutely positive one. On the basis of the argument found where there is an equivalent situation in another country and that situation is regulated with a statutory provision, one may, however, in most cases reach a positive answer — if this is what is preferred. At any rate, there is no unequivocal answer to a simple question and this work is intended as a tool for working on problems in this field.
The third question was, how the rules of compulsory contracting relate to cases in which a consumer has earlier met with social force majeure and then has avoided some obligation to his/her contractual party. The answer to this question is the most difficult one to give. The relations between social force majeure and compulsory contracting with attainability of goods and services in a wider sense are complicated. One may say that social force majeure as such is not a legitimate ground for refusal of concluding a contract, at least not while talking about essential goods and services.
Julkaisun otsikon käännösFreedom of Contract Summary: : Right to Contract. A Nordic Research Study on Compulsory Contracting for the Benefit of Private Persons.
Alkuperäiskieliruotsi
JulkaisupaikkaCopenhagen
Kustantaja
Painoksen ISBN92-893-0065-5
TilaJulkaistu - 1997
OKM-julkaisutyyppiG3 Lisensiaatintyö

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