The Impact of Human Rights on Contract Law in the Light of European Case Law

Yousef Molaei, Ebrahim Shoarian
The Quarterly Journal of Public Law Research, Allameh Tabataba'i University, Volume 15, Issue 42, Winter 2015, Pages 173-190.


Despite of the fact that the principle of freedom of contract has made it possible for the parties to reach the agreement with free will and full authority, the experience has shown that the contractual balance between the parties has been impaired by the passage of time and scientific and industrial advancement so as to it has brought the issue of weak and strong party in many contracts and consequently has made it difficult for law-makers and jurists to establish the balance between the parties. Since long before, due to the various reasons, the protection of the weaker party of the contract has caused the distance of some parts of private relations from the ambit of private law; protecting the employee in the labor contract is a good example here to be mentioned. Nevertheless, it seems that there is no end point for such a movement and the rules of human rights are attempting to take further step in controlling the rules of private law. Human rights that has already shown its effectiveness in constitutional and criminal law, is striving to inter into the scope of private law including contract law through the expansion of its basic rules in order to show that it is not merely a monitor of the parties’ contract. On the contrary, it will protect the basic rules of human rights wherever it is required. Nowadays, human right is not considered as a mere protector of individuals against governments. Conversely, the impacts of human rights on contract law have been acknowledged both by case law and scholars, specifically in the European legal system. Our legal system is not familiar with this phenomenon but the present essay attempts only to broach the issue and provide the basis for further development of the concept in our legal system.

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