Often “hard law” is contrasted with “soft law”.
A. “Hard law” and “Soft law” distinction with reference to international contract law.
Hard Law is legally binding and can be enforced before a court and on the other hand soft law is not legally binding and cannot directly be enforced before a court. Soft Law can take the form of model principles or a goal to be achieved in a contract for it to be as “just” or “fair” and take account of what is expected of the parties who wish to form the contract. An, example of Hard law is The United Nations Convention on Contracts for the International Sale of Goods (CISG) (Vienna convention 1980). The Vienna convention applies to international sale of goods which parties may not deviate from in the event of a dispute to arise between the parties. On the other hand, Unidroit is soft law and can be used to interpret the terms of an international agreement, and if Unidroit principles are not corresponding/in coherence with the contract terms then there would not be a breach of contract as it does not set any obligation on the part of any of the parties. One can state that the soft law is used when interpreting the contract and frees the party from any obligation to implement any of its terms, whereas the opposing applies for hard law.
Given the example of European Contract Law, several legal instruments are made available and exist for member states to interpret their own national contract law where, for example a preliminary ruling to the ECJ has been sought for by a member state to interpret their own domestic contract law. Furthermore, several soft law instruments such UNIDROIT (or PICC), Principles of European Contract Law (PECL) and International soft law - Ch. 4 PICC, Book II ch. 8 DCFR, ch. 5 PECL provide principles, or model rules of interpretation of a contract that EU member states need to make consideration of, if such a clause is inserted in the contract.
However, several cases and EU (or International) instruments set standards that Member states/countries have/are obliged to adhere to/abide by or otherwise they would be in breach of the terms of the contract. This can be seen in the case of EU consumer contracts. This is not the case, as much for commercial contracts as there the notion of fair dealing and freedom of contract exists, albeit with some exceptions.
B. How “hard” international contract law interact with “soft” international contract law.
In my opinion, soft law which is non-binding (principles or model rules), supplement or complements Hard law which is binding (obligatory terms, cannot be breached). For the purpose of protection the protection of consumers in the EU the Consumer Rights directive must be adopted by EU member states, the Commission's proposal for a Common European Sales Law (CESL)[1]which applies to consumer transactions is an optional legal instrument and Member states may choose to incorporate it into their national laws. The CESL covers business B2C contracts and B2B contracts and was adopted by the European Commission in October 2011. Businesses in the EU Member states may choose for the set of rules stated in the CESL to “co-exist” with their national laws for B2C contracts. For that reason, the CRD can be seen or regarded as Hard Law whereas the CESL can be regarded as soft law. Hard Law sets statutory legal rights whereas soft law can be seen as an option to “co-exist” with statutory hard law. Looking at consumer contracts, preferential protection consumer is afforded. Under English law, for example The Sale of Goods Act 1979 (SGA 1979) implies additional statutory terms into the sale contract for the benefit of the consumer in addition to any express terms agreed by both parties at the time the contract is made, for example the duty to deal in good faith and honesty as stipulated under a soft-law instrument which can be supplemented to the hard law duty.
Hard Law duty under article 35(1) of SGA 1979 and imposes the right for The consumer against the retailer
Article 35(1) “The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract”
Specifically soft law instrument Unidroit, The Duty to deal in good faith is stipulated as follows,
Art. 4.8 PICC (supplementary interpretation)
(1) Where the parties to a contract have not agreed with respect to a term which is important for a determination of their rights and duties, a term which is appropriate in the circumstances shall be supplied.
(2) In determining what is an appropriate term regard shall be had, among other factors, to
o (a) the intention of the parties;
o (b) the nature and purpose of the contract;
o (c) good faith and fair dealing;
o (d) reasonableness.”
The above are some examples of how soft aw supplements hard law under international law.
[1] Proposal for a regulation of the European Parliament and of the Council 2011/084 on a Common European Sales Law [2011] COM 2011/0635 Final
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