● The public and private law sphere are not separated
● A lot economic, social, political rights depends on contracts
● Contracts are the gateway to economic and social rights
● This is why contract law matters concerning human rights
McDonald v McDonald (2016)
● Supreme Court → human rights should stay out of contract law
● McDonald claimed a bank’s notice to quit a tenancy under the Housing Act 1988 s 21(4)
violated ECHR art 8: she had a mental disorder but was given a lease without the bank’s
consent.
● Supreme Court held there was no violation, because while legislation was there,
contractual rights should be presumed to be ECHR art 8 compatible. Apparently the
Convention was to protect citizens against the state (not banks!).
● But R (Unison) v Lord Chancellor [2017] UKSC 51, Lord Reed, ‘the case law of the
Strasbourg court concerning the right of access to justice is relevant to the development
of the common law.’
● ‘The ECHR is intended to protect individual rights against infringement by the state or its
emanations.... a domestic court would be regarded by the Strasbourg court as part of the
state, and therefore obliged to respect individual rights enshrined in the Convention.
● [But] it is not open to [a claimant] to contend that article 8 (the right of family and private
life) could justify a different order from that which is mandated by the contractual
relationship between the parties, at least where, as here, there are legislative provisions
which the democratically elected legislature has decided properly balance the competing
interests of private sector landlords and residential tenants....
● To hold otherwise would involve the Convention effectively being directly enforceable as
between private citizens so as to alter their contractual rights and obligations, whereas
the purpose of the Convention is, as we have mentioned, to protect citizens from having
their rights infringed by the state.’
Universal Declaration of Human Rights 1948
Article 23
1. Everyone has the right to work, to free choice of employment, to just and favourable
conditions of work and to protection against unemployment.
2. Everyone, without any discrimination, has the right to equal pay for equal work.
3. Everyone who works has the right to just and favourable remuneration ensuring for
himself and his family an existence worthy of human dignity, and supplemented, if
necessary, by other means of social protection.
4. Everyone has the right to form and to join trade unions for the protection of his interests.’
Article 24
1. ‘Everyone has the right to rest and leisure, including reasonable limitation of working
hours and periodic holidays with pay.’
Article 25
1. Everyone has the right to a standard of living adequate for the health and well-being of
himself and of his family, including food, clothing, housing and medical care and
, necessary social services, and the right to security in the event of unemployment,
sickness, disability, widowhood, old age or other lack of livelihood in circumstances
beyond his control.’
Human rights in private law: Germany and EU
● Comparison to German law
● Much of the modern thinking derives from German law
● Human rights in EU law
BGB 1900 and Basic Law 1949
● German constitution → The Grundgesetz 1949 (Basic Law 1949) contains
human rights,
○ Article 2 → right to private autonomy
○ Article 5 → freedom of expression
● The Bürgerliches Gesetzbuch 1900 (German Civil Code 1900) contains basic contract
rules, but also requires that contracts are performed in accordance with public policy,
and in good faith.
● Lüth Judgment → held a fascist film maker could not sue a politician for
defamation after he publicly called for a boycott of the film: actions in tort
had to be interpreted compatible with basic constitutional rights.
○ Takes into account the politician’s right in freedom of contract
German Constitutional Court, Bank guarantees (Bürgschaft) (1993)
● In joined cases, lenders required spouses of mortgagees to guarantee their partners’
debts. (Remember Barclays Ltd v O’Brien and Etridge!)
● Constitutional Court held, claimant (1) had the right to cancel the obligation but claimant
(2) did not.
Case one
● 21 year old daughter guaranteed her father’s DM 100k debt, while no job
● She was misled by the bank about the seriousness of the obligation.
● ‘The claimants’ objections concern the interpretation and application of those general
clauses that control the content of contractual obligations in civil courts, primarily [public
policy and good faith].
● In construing these clauses, the basic right of private autonomy and the right to develop
one’s personality must be considered, and the civil courts failed to do so in initial
proceedings....
Case two
● A wife guaranteed her husband’s debt, which eventually meant DM16,274.02
● The bank knew she probably could not work in order to earn money to pay off this debt
while looking after children.
● In contract law, a just balance of interests results from a concurrence of wills among the
contracting parties. Both bind themselves and in doing so protect their own individual
freedom of action.
● A lot economic, social, political rights depends on contracts
● Contracts are the gateway to economic and social rights
● This is why contract law matters concerning human rights
McDonald v McDonald (2016)
● Supreme Court → human rights should stay out of contract law
● McDonald claimed a bank’s notice to quit a tenancy under the Housing Act 1988 s 21(4)
violated ECHR art 8: she had a mental disorder but was given a lease without the bank’s
consent.
● Supreme Court held there was no violation, because while legislation was there,
contractual rights should be presumed to be ECHR art 8 compatible. Apparently the
Convention was to protect citizens against the state (not banks!).
● But R (Unison) v Lord Chancellor [2017] UKSC 51, Lord Reed, ‘the case law of the
Strasbourg court concerning the right of access to justice is relevant to the development
of the common law.’
● ‘The ECHR is intended to protect individual rights against infringement by the state or its
emanations.... a domestic court would be regarded by the Strasbourg court as part of the
state, and therefore obliged to respect individual rights enshrined in the Convention.
● [But] it is not open to [a claimant] to contend that article 8 (the right of family and private
life) could justify a different order from that which is mandated by the contractual
relationship between the parties, at least where, as here, there are legislative provisions
which the democratically elected legislature has decided properly balance the competing
interests of private sector landlords and residential tenants....
● To hold otherwise would involve the Convention effectively being directly enforceable as
between private citizens so as to alter their contractual rights and obligations, whereas
the purpose of the Convention is, as we have mentioned, to protect citizens from having
their rights infringed by the state.’
Universal Declaration of Human Rights 1948
Article 23
1. Everyone has the right to work, to free choice of employment, to just and favourable
conditions of work and to protection against unemployment.
2. Everyone, without any discrimination, has the right to equal pay for equal work.
3. Everyone who works has the right to just and favourable remuneration ensuring for
himself and his family an existence worthy of human dignity, and supplemented, if
necessary, by other means of social protection.
4. Everyone has the right to form and to join trade unions for the protection of his interests.’
Article 24
1. ‘Everyone has the right to rest and leisure, including reasonable limitation of working
hours and periodic holidays with pay.’
Article 25
1. Everyone has the right to a standard of living adequate for the health and well-being of
himself and of his family, including food, clothing, housing and medical care and
, necessary social services, and the right to security in the event of unemployment,
sickness, disability, widowhood, old age or other lack of livelihood in circumstances
beyond his control.’
Human rights in private law: Germany and EU
● Comparison to German law
● Much of the modern thinking derives from German law
● Human rights in EU law
BGB 1900 and Basic Law 1949
● German constitution → The Grundgesetz 1949 (Basic Law 1949) contains
human rights,
○ Article 2 → right to private autonomy
○ Article 5 → freedom of expression
● The Bürgerliches Gesetzbuch 1900 (German Civil Code 1900) contains basic contract
rules, but also requires that contracts are performed in accordance with public policy,
and in good faith.
● Lüth Judgment → held a fascist film maker could not sue a politician for
defamation after he publicly called for a boycott of the film: actions in tort
had to be interpreted compatible with basic constitutional rights.
○ Takes into account the politician’s right in freedom of contract
German Constitutional Court, Bank guarantees (Bürgschaft) (1993)
● In joined cases, lenders required spouses of mortgagees to guarantee their partners’
debts. (Remember Barclays Ltd v O’Brien and Etridge!)
● Constitutional Court held, claimant (1) had the right to cancel the obligation but claimant
(2) did not.
Case one
● 21 year old daughter guaranteed her father’s DM 100k debt, while no job
● She was misled by the bank about the seriousness of the obligation.
● ‘The claimants’ objections concern the interpretation and application of those general
clauses that control the content of contractual obligations in civil courts, primarily [public
policy and good faith].
● In construing these clauses, the basic right of private autonomy and the right to develop
one’s personality must be considered, and the civil courts failed to do so in initial
proceedings....
Case two
● A wife guaranteed her husband’s debt, which eventually meant DM16,274.02
● The bank knew she probably could not work in order to earn money to pay off this debt
while looking after children.
● In contract law, a just balance of interests results from a concurrence of wills among the
contracting parties. Both bind themselves and in doing so protect their own individual
freedom of action.
