Towards Need-Oriented General Principles

  • Thomas Wilhelmsson
Part of the Law and Philosophy Library book series (LAPS, volume 16)


In the law of obligations the parties in a legal relationship have traditionally been defined using abstract and formal role concepts. These concepts have to some extent, as we saw in Chapter IV, been supplemented with function-related concepts such as ‘consumer’ and with ability-oriented concepts such as ‘expert’. The cases within the law of obligations where it has been possible to consider a party’s concrete economic and social needs have until now been viewed as somewhat isolated exceptions.


Social Responsibility Legal Consequence Small Enterprise Contractual Relationship General Clause 
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    Esser - Schmidt 1984 p. 17.Google Scholar
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    In this context reference should be made to the comprehensive international discussion on “Corporate Social Responsibility”: see e.g. Dübeck 1989.Google Scholar
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    Eidemiiller 1989 p. 40 argues on a more general level against Unger’s “solidarity rights” precisely because he considers them to have corresponding counterproductive side-effects. Such rights would in his opinion lead to a person who may be adversely affected by them being “careful to avoid situations in which he runs the risk of being confronted with solidarity claims. He might even be careful to avoid other people altogether.”Google Scholar
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    Another negative side-effect of a need-oriented tort law is naturally conceivable: if the prospective, economically weak tortfeasor is aware that his own need to avoid liability is given considerable weight in the legal assessment, this may possibly lead to a reduction of the preventive effect of damages. In discussion of tort law, however, opinions have always diverged strongly regarding whether and how far liability in damages has a preventive effect at all. As long as opportunities for need-oriented solutions are relatively limited in cases of deliberate damage and the assumption is not that consideration of the tortfeasor’s needs will normally lead to the liability disappearing entirely, one can obviously disregard the risk that need-orientation would weaken the preventive effects of tort law.Google Scholar
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    The position today in Finland is that only public institutions such as the post office and the state railways, together with companies in a monopoly position and comparable companies, are obliged to conclude contracts with any person who is prepared to supply his counter-performance; see Kivimâki - Ylôstalo 1981 p. 263. In for example German law the development seems to have gone further, see e.g. Kilian 1980.Google Scholar
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    An exception from the tendency in contract law - except for cases of subsequent needs - to operate with need-oriented degree concepts is, in Finnish law as in many other systems, the reference to the need of housing in tenancy law. That it has been possible here to employ such a concept is presumably linked with the size of the group indicated as meriting protection: most tenants can be assumed to have no housing other than where they have been given notice to quit.Google Scholar
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    In 1987 for example over 2 million households in Great Britain were stated to be unable to repay credits. In France the over-indebted households at the end of the eighties were about 200,000. The figures are mentioned in the preliminary General Report from the conference on Unemployment and Consumer Debts in Europe, 22–23.9.1989 in Hamburg.Google Scholar
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    See for more detail e.g. Holzscheck - Hörmann - Daviter 1982 p. 282, 324 ff., Adler 1985 p. 16, 21, Trebilcock - Reiter - Laskin 1979 p. 28 ff., Holmila 1973 p. 17 and Holmila-McCafferty 1975 p. 27, 36.Google Scholar
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    In Finland for example, the following are exempt from distraint: the debtor’s and his family’s necessary clothes, bedclothes, beds and indispensible furniture and household utensils, equipment necessary for work, and one month’s provisions where this is deemed indispensible to the debtor. From the debtor’s salary according to the main rule two-thirds shall be exempt from distraint, but always as much as he is considered to need for his own and his family’s support. A greater part of the debtor’s salary is exempt from distraint if his ability to pay is substantially reduced because of illness, unemployment or other special cause (social force majeure). Google Scholar
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    Kâhler 1984 p. 490. Reifner 1980 p. 355 refers to the same problem when he notes that one can use private law to create a social welfare case. See also Trebilcock - Reiter Laskin 1979 p. 74.Google Scholar
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    That adjustment of unfair prices is in fact possible in Finnish law is clear from sec. 36 of the Contract Act. From this, however, it does not yet follow that account could be taken of the debtor’s economic standing in the assessment of fairness.Google Scholar
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    See as an example HD 1986 II 144 above V.8.2.i.Google Scholar
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    Thus for example the case reported in V.8.2.ii.Google Scholar

Copyright information

© Springer Science+Business Media Dordrecht 1992

Authors and Affiliations

  • Thomas Wilhelmsson
    • 1
  1. 1.Department of Private LawUniversity of HelsinkiFinland

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