Immorality and Private Autonomy in Contract Law: A Comparative Research Project to Balance Freedom of Contract and Control in Europe and Japan Exemplified by Contracts Regarding Prostitution, Surrogate Motherhood and Marriage
Responsible for the postdoc project: Dr. Sandra Hotz
Funded by: URPP Asia and Europe
Project duration: September 2006 – August 2009
Gästebuch eines Geishahauses (Datum unbekannt), Flomarkt Toji Tempel, Kyoto 2008
The goal of this project is it to contribute to a legal and cultural comparison between Europe and Japan (Asia).
This project examines the barriers to private autonomy in the Japanese, German, Swiss and European Contract Law by means of regulations regarding „immoral “contents and circumstances of contracts. By comparative legal analyzing one can illustrate how different cultures, whose legal orders know the same civil law institutions („Immorality of the contract “and the „general contract principles of private autonomy“), apply these differently due to cultural, sociological and legal differences. On a contract law level, the comparative research on “immoral contracts” including the question whether we need this “last moral barrier”, is important because general provision are either a chance (e.g. to consider other cultural values) or a risk (e.g. for the prostitutes: who don’t have a right to claim their payment, due to traditional moral values).
The three chosen examples (prostitution, surrogate motherhood and marriage contracts) are connected to fundamental questions of freedom of contract and the freedom to exercise a trade by, respectively the position of women vs. the control of contracts. From the legal and actual differences results a search for mutual effects and transnational contract principles, a further goal of the project is therefore to think about a model that tries to realize a balance between freedom and control in contracts in a transcultural or global law field.
In addition this project aims to rethink comparative law methods and to make some propositions how a comparative legal analysis could be well-suited differentiation purposes.
Detailed Project Description (PDF, 137 KB)