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European Law Journal

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One of the most interesting recent developments in contract law has been an academic and political effort to integrate private law. The proposed Common European Sales Law was ultimately withdrawn, and a series of setbacks, including the British referendum to exit the EU, has recast the politics of convergence. But it remains an objective for many European scholars. This essay considers the wisdom of convergence on a single law of transactions from the perspective of philosophical contract theory. The essay proceeds by disaggregating the rights at stake in contract law. It characterises the formal right to contract and describes its moral impetus as one that should underwrite contract law in all states, especially liberal states. But the essay argues that the legitimate contours of the formal right are contingent on tenets of political culture that vary across Member States. Similarly, substantive regulation of contract is morally compulsory and serves universal interests; the essay takes regulation of permissible work and remuneration for work as examples. But the rules and standards that best advance those moral interests depend on economic facts specific to individual political communities. The essay concludes by arguing that contract law is a poor tool by which to accelerate political and economic convergence.

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Contracts Commons