Etica del contratto e "Contratti 'di durata' per l'esistenza della persona"

Translated title of the contribution: [Autom. eng. transl.] Contract ethics and "Life contracts" for the existence of the person "

Research output: Chapter in Book/Report/Conference proceedingChapter

Abstract

To refer to the social dimension of a contract is to challenge the idea that a contract is simply an act of autonomy (self-determination). However, if a certain degree of heteronomy can coexist within a contract, the different strands must be identified in order to render this coexistence sustainable. The contract is, in reality, an expression of the autonomy and individual responsibility of those, who, in the act of concluding a contract, are consciously bound by that act. What is required is a solution that does not distort the essential nature of the contract, but instead determines the scope of intervention, conditions and procedures that are compatible with the concept of the contract that can be integrated in the neo-institutionalist model that characterises the law in Europe after the crisis of pure normativism. From an abstract point of view it is possible to hypothesise two complementary strands, which are not necessarily incompatible, in order to fully understand the social dimension of contracts. indisputable heteronomy based on the legislative power of the majority. An addition to the contract by reference to moral values, justified by the fact that contracts are acts of social relationality and legally binding. Thus, the moral values that are considered integral elements of contracts are to be intended as ethical–legal values, that is, values of an implicitly dual nature, being both moral and legal. In the first case, the social dimension could seem to be an authoritarian intervention in the contract, resulting in expropriation with a punitive effect on certain categories of people to the advantage of others. In the second case, the intervention is less authoritarian and can be explained intersubjectively. Indeed, autonomy is not purely arbitrary, because contracts operate within a social context and consequently must take into account a measure of morality. They are not merely private affairs, but also juridical, and so must be applicable to the general rationality of the law. The law is tertium related to the parties, and when they seek enforcement of their contract they accept this third dimension. This concept is pan-European and concerns not only procedural rules but the content of the contract as well. In certain countries it is more explicit than in others, such as in England, where the courts work with so-called implied terms. With regard to moral values, I wish to emphasise legalised moral values. Moral values become legal principles and are therefore subject to the test of reasonableness and the need to establish coherence with other principles. There is no place in the law for fundamentalism of any sort, ethical, religious or even economic. Two fundamental issues relating to Reethisierung should be highlighted: 1 justifying duties without compensation, these being generally purposes based on the principles of solidarity (safeguarding good faith and the weak generally). This view proposes a justification closer to the idea of autonomy as a social facet of cooperation. Everybody relies on a general principle of ethics when they enter into a relationship with another. From a general perspective, the rules derived from moral values are not merely authoritarian decisions, but products of intersubjective research in the field of the social experience of values. In particular, this should be valid regarding ‘basic necessity life-time contracts’, such as contract of labour, loan for the purchase of a house, guarantee in favour of a family member, tenancy for housing, healthcare contracts, etc. Those are contracts that usually last for a long time of life and regard basic needs of people. 2 establishing boundaries demarcating the tendency towards universal commodification and an extension of the market into the voluntary sector (so-called third sector). Creating or leaving the condition unmodified in order for gratuitous acts to be realised. Only the first issue
Translated title of the contribution[Autom. eng. transl.] Contract ethics and "Life contracts" for the existence of the person "
Original languageItalian
Title of host publicationLife Time Contracts: Social Long-term Contracts in Labour, Tenancy and Consumer Credit Law
EditorsLUCA NOGLER, Ugo Reifner
Pages123-167
Number of pages45
Publication statusPublished - 2014

Keywords

  • Contract
  • Contratto
  • Ethics
  • Etica

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