Walter Wilburg’s ‘Flexible-system Approach’ Projected onto the Law of Contract by means of the European Draft Common Frame of Reference Principles

Abstract

During the twentieth century the development of social justice led to the promulgation of legislation to address social issues. This body of law rules alongside classic contract law and not only overlaps, but on occasion conflicts with the latter. In 1950 the Austrian jurist Walter Wilburg proposed the ‘flexible system’ to deal with the problem of overlapping and conflicting principles. According to the ‘flexible system’, Wilburg recognised the existence of a plurality of principles which need to be graded or weighted and applied concomitantly in order to establish delictual or contractual liability. This paper deals with the application of Wilburg’s approach to contract law. His flexible system is reflected to an extent in both the theory and principles of the European Draft Common Frame of Reference. This paper first analyses Wilburg’s flexible approach. Secondly, this flexible system is projected on to the law of contract to establish contractual liability. The foundational principles of freedom, security, and justice identified by the DCFR, are used as the graded principles to be applied in this flexible system. Each individual principle has different aspects, which provide content to the individual principle. The South African principles which echo those of the DCFR are discussed and integrated into this analysis. Finally, a flexible model to establish whether
a contract is enforceable or not, is developed. The format of this model is borrowed from ‘decision tree analysis’. A minimum total weight of 75 is suggested for enforceability of a contract. The principles are allocated maximum weights of: freedom=40, security=30 and justice=30. Whether a contract is enforceable or not will depend on the weight realised by the sum of the principles in a particular case. The different aspects of each principle act as chance events which may compromise the principle and cause its weight to be decreased.