Publication details
Rovnost a slabost v soukromém právu jako vůle a představa?
| Title in English | Equality and weakness in private law as the will and idea? |
|---|---|
| Authors | |
| Year of publication | 2018 |
| Type | Article in Proceedings |
| Conference | Sociálna funkcia práva a narastajúca majetková nerovnosť |
| MU Faculty or unit | |
| Citation | |
| Keywords | Principle of equality; principles of private law; protection of a weaker party; consumer´s protection; protection related to the formal status of the party |
| Attached files | |
| Description | In private law, equality is understood as equivalence of the interests of parties to a legal relationship. Special treatment is not discriminatory although it may appear so. On the contrary, it would be discriminatory if parties with a diametrically different status were treated the same way. If the result is unfair, unfairness is being examined in negotiation process. On the contrary, if a fair result is achieved although unfairness was present in the negotiation process, everyone is satisfied and there are no legal actions because such a result is satisfying.Procedural injustice leads to substantive injustice (to great inequality in results) only sometimes; on the contrary, any great injustice in results does not have to be causally conditioned by procedural injustice. The status-based viewpoint of protection of the so-called weaker partner is very rough and potentially dangerous. Instead, emphasis on good morals and fairness of contracts between everyone should be generally acceptable and sufficient. There are two opposing tendencies.On one hand, private law is particularised - it is divided by status to law of entrepreneurs (business law) and the “Remainder”.On the other hand, there is a tendency towards a single law of obligations regardless of the personal status (single “customer”). There are hidden deep value beliefs, convictions and prejudices in this area behind brandishing with articles of the legal acts and the interests of the participants, too, being closely connected with their values and beliefs. |