One of the main purposes of contract law is to regulate the legal obligations between two parties to a contract. From the viewpoint of contractual parties, legal certainty is important to predict the consequences of possible ‘unwanted’ actions and events that could impair the parties’ expectations. Against this background the codification of private law rules, most notably in the form of civil codes is one of the most relevant mechanisms in civil law countries. One of the biggest demerits of civil codes is that not every thinkable scenario can be sufficiently or explicitly addressed. In various cases appropriate solutions cannot be found merely by basing the decision on the wording of a pertinent provision. Additional means of legal interpretation (i.e., logical-systematic interpretation, historical/subjective-teleological interpretation and objective-teleological interpretation to support literal interpretation) can be of help to clarify the meaning. But even if the wording of a provision seems to be clear and supported by other forms of legal interpretation, one might face a situation that is not absolutely convincing, in particular if it leads to an objectively unjust result. Teleological reduction of said provisions can be one last resort to reach a ‘just’ result. From the viewpoint of legal certainty the use of teleological reductions might, however, be controversial, because allowing for too much flexibility could lead to insufficient clarity and transparency of legal rules. The present contribution aims to analyse the tension between flexibility and clarity with the example of the Austrian warranty regime that offers interesting perspectives for this discussion. It will comment on debates regarding the phenomenon of planned obsolescence that concern a possible loosening up of written rules for the sake of reaching a higher level of fairness and will conclude with some thoughts on how to solve problems that might occur in this endeavour.
|Title of host publication||Flexibility in Modern Business Law|
|Subtitle of host publication||A Comparative Assessment|
|Number of pages||22|
|Publication status||Published - Jan 1 2016|
All Science Journal Classification (ASJC) codes
- Social Sciences(all)