Abstract
This chapter discusses the constitutionalisation of Contract law in Finland and makes frequent comparative references to the other Nordic systems. It aims to describe how Constitutional law has gradually started to influence Contract law. Moreover, the analysis seeks to predict some key future developments concerning Constitutional Contract law in Finland. This chapter illustrates how relevant constitutional actors consider these two areas of law and how these actors may sometimes collide because of key doctrines and the constitutional structure. It is concluded that references to Constitutional and Human rights law are not going to replace traditional Contract law argumentation. In most cases, nevertheless, Constitutional and Human rights law offer a useful means to clarify and modify the arguments used in traditional Contract law reasoning. The authors expect growing significance and legal relevance of the relationship between Constitutional law and Contract law.
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Notes
- 1.
See Husa (2011a).
- 2.
- 3.
See, e.g. Suksi (2014).
- 4.
This section is based on Husa (2011b).
- 5.
For a broader view, see Raunio (2004).
- 6.
- 7.
Länsineva (2002).
- 8.
Cf. Länsineva (2012), pp. 117–119.
- 9.
See Pöyhönen (Karhu) (2003).
- 10.
Importantly, The Council of Europe’s revised European Social Charter has been in force since 2002. And, the EU Charter of Fundamental Rights also contains a wide range of ESC rights that may have relevance in the context of contract law. Furthermore, there are other important conventions such as the European Convention on Social Security and many International Labour Organization (ILO) conventions and recommendations.
- 11.
See for a broader discussion Lavapuro et al. (2011).
- 12.
See Husa (2011c).
- 13.
Section 15 provides that, ‘Provisions on the expropriation of property, for public needs and against full compensation, are laid down by an Act.’
- 14.
Section 20 on the responsibility for the environment provides that ‘Nature and its biodiversity, the environment and the national heritage are the responsibility of everyone. The public authorities shall endeavour to guarantee for everyone the right to a healthy environment and for everyone the possibility to influence the decisions that concern their own living environment.’
- 15.
See Husa (2011b), pp. 186–187.
- 16.
KKO 2004:26. (KKO stands for ‘Korkein oikeus’ in English ‘Supreme Court’.)
- 17.
PeVL 45/2002 [PeVL stands for ‘perustuslakivaliokunnan lausunto’, i.e. Statement of the Constitutional Committee].
- 18.
PeVL 25/2005.
- 19.
See Husa (2011b), pp. 186–187.
- 20.
See Ojanen (2009).
- 21.
See Husa (2011b), pp. 78–88.
- 22.
KKO 2006:71. The environmental dimensions of cases like this are dealt with in Sect. 4.2.
- 23.
The Act on the Protection of Rapids (35/1987). The main function of the Act is to protect Finland’s most precious waterways from construction.
- 24.
KKO 2003:60.
- 25.
Arbitration Act (967/1992) Section 46 (3) ‘The arbitrators have the right to demand an advance on the compensation or a security therefor.’
- 26.
Constitution Act Section 21 (1) Protection under the law: ‘Everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority, as well as to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice.’
- 27.
- 28.
See, e.g. Niemi-Kiesiläinen (2007).
- 29.
The Contract Act (228/1929) [Contains several later amendments].
- 30.
There are two recent excellent general presentations of Nordic contract law systems. The book published in 2015 titled The Nordic Contracts Act contains essays in celebration of the 100th anniversary of those laws. Restatement of Nordic Contract Law from 2016 is a systematic overview relating to various sections of the laws.
- 31.
See FCA Chapter 3: Invalidity and Adjustment of Contracts (as amended in 1982).
- 32.
See Husa (2011b), pp. 198–199.
- 33.
Good faith clauses, Section 11(2), Section 19, Section 28(2), Section 32(82), Section 33, Section 34, Section 35 and Section 39. A typical example is Section 39: ‘If, according to this Act, the validity of a contract or other transaction depends on the fact that the person to whom the transaction was directed neither knew nor should have known of a circumstance or that he/she otherwise was in good faith, regard shall be had to what he/she knew or should have known when he/she learned of the transaction.’
- 34.
FCA 36(1): ‘If a contract term is unfair or its application would lead to an unfair result, the term may be adjusted or set aside. In determining what is unfair, regard shall be had to the entire contents of the contract, the positions of the parties, the circumstances prevailing at and after the conclusion of the contract, and to other factors.’
- 35.
See Tolonen (1973).
- 36.
KKO 2010:23.
- 37.
KKO 2010:23.
- 38.
PeVL 3/1982.
- 39.
See Pöyhönen (Karhu) (1988).
- 40.
See Andersen and Runesson (2015).
- 41.
Constitution Act Section 18(1): ‘Everyone has the right, as provided by an Act, to earn his or her livelihood by the employment, occupation or commercial activity of his or her choice…’.
- 42.
Consumer Protection Act 38(1978) 12 1d (1)—Handling of disputes (amended in 1997): ‘A term in a contract concluded before a dispute arises, under which a dispute between a business and a consumer shall be settled in arbitration, shall not be binding on the consumer.’
- 43.
KKO 2003:60.
- 44.
HE 309/1993 (HE stands for ‘Hallituksen esitys’ in English ‘Government’s bill’.)
- 45.
HE 100/2002.
- 46.
PeVL 45/2002.
- 47.
PeVL 4/2008 and PeVL 41/2013.
- 48.
PeVL 45/2002 4–5.
- 49.
Report of the Constitutional Committee PeVM 10/1998.
- 50.
See besides KKO 2006:71, KKO 1991:171, KKO 2000:28 and KKO 2000:97.
- 51.
KKO 2004:26.
- 52.
KKO 2010:23. The amount of the fine in question was 40 € which was the normal level of private fines at that time and which was on par with fines ordered by public parking supervision in similar situations.
- 53.
Statement 57/2010 of the Constitutional Committee.
- 54.
See the Statement of the Constitutional Committee (PeVL 23/2013), which finds a constitutional problem with the Government’s bill and, thus, effectively stops the bill on constitutional grounds.
- 55.
According to Smits (2006), p. 10: ‘The constitutionalisation of private law can be described as the increasing influence of fundamental rights in relationships between private parties, fundamental rights being those rights that were originally developed to govern the relationships between the State and its citizens’.
- 56.
It should be mentioned, however, that when this topic is discussed in the private law academic literature the mainstream attitude is rather restrictive, see for example Helin (2012). Even if the possibility of constitutional arguments is allowed, such an argumentation is seen to have only a limited area of relevance. Our prediction is, notwithstanding, that this situation is changing.
- 57.
See Helin (2012), pp. 25–27.
- 58.
This seems to be one aspect of an ongoing research for a PhD thesis by Mr. Joonas Norr from the University of Turku, where he deals with the additional value of constitutional rights-based argumentation in Contract law.
- 59.
See Pöyhönen (Karhu) (2003).
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Husa, J., Karhu, J. (2019). The Constitutionalisation of Contract Law in Finland. In: Siliquini-Cinelli, L., Hutchison, A. (eds) More Constitutional Dimensions of Contract Law. Springer, Cham. https://doi.org/10.1007/978-3-030-15107-2_2
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