Publication details
Ochrana před diskriminací, zneužití práva a autonomie vůle
| Title in English | Protection Against Discrimination, Abuse of Rights and the Autonomy of Will |
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| Authors | |
| Year of publication | 2015 |
| Type | Article in Proceedings |
| Conference | Diskriminácia v zmluvnom práve |
| MU Faculty or unit | |
| Citation | |
| Field | Law sciences |
| Keywords | autonomy of will; freedom of contract; abuse of rights; fairness; protection against discrimination; obligation; formation of the contract |
| Description | In this paper the author analyses relationship between the autonomy of will and equality in private law. He concludes that freedom and equality are interrelated in a dialectical relationship. He also notes that there is no freedom without equality and equality without freedom. Antidiscrimination law is not considered as incoherent element of private law, but as personhood limitation of private rights (ownership, right to pursue economic activity). Antidiscrimination law is also a manifestation of the principle of fair dealing and has significant relationships with both the prohibition of abuse of rights or the pre-contractual liability (culpa in contrahendo). In the next part of the paper, the author addresses the issue of contract formation, where businessperson is offering their goods or services through advertising, exhibition or in the catalogue. He states that the new Civil Code of the Czech Republic, compared to the Civil Code of 1964, changed the legal approach towards the conclusion of the contract, because while in the past the victim of discrimination was making only the invitatio ad offerendum newly an acceptance of the offer may lead to the formation of a contract. Businessperson is thus limited in choice of the contracting party. In conclusion, the author deals with the question whether the application of the restitution claim (elimination of the consequences of discrimination) may lead to the formation of the contract against the will of a contracting party. In this regard the author argues that one of the fundamental principles of the autonomy of will (freedom not to conclude an agreement) is not abolished by the anti-discrimination law, since upon the discriminatory conduct a tort obligation arises, which performance may consist in facere (providing of services). Providing services is therefore not done under the contract obligation, but on other legal ground (obligation arising from delict). |