The missing stone in the Cathedral Of unfair terms in employment contracts and coexisting rationalities in European contract law

This dissertation attempts to partially refocus the debate on unfair terms control, exploring the contribution that the emergence of unfair terms control in employment contracts in two legal systems can make to articulating the respective positions of judicial control, regulation and justice in contract law. By reconstructing the developments preceding the adoption of rules allowing judicial control of non-negotiated employment contracts in France and Germany, the book focusses on judicial control as a response to contractualisation of employment relations. Such contractualisation – in itself a combination of broad trends in labour law, doctrinal developments and, increasingly, HR practices – is paralleled to the movements which, at the outset of the 20th century, gave rise to the notion of contrat d’adhésion. Employers have good reasons to use the contract as a tool: to customise the contents of the employment relationship, to include elements of flexibilisation and to put in place dispute-management procedures. This increases the saliency of contracts, and contract law, in employment relations. Such success of contract law as a means of managing unequal relations calls for a reconsideration of its basic tenets, and in particular of what corrective justice means between the parties concerned. Judicial control is, in this sense, a first step towards such reconsideration.