MfTHODOLOGICALCHANGFS IN INTFRNATIONAl TRADF LAW 159 substances more or less similar to what now applies for oil spill. This leads to a disturbing inconsistency of the legal system not only in the field of shipowners’ liability to third parties but also in the more general field of environmental law and the law of products liability. We are faced with the difficulty to administer a number of different funds set up to meet the liability of shipowners as well as conflicting legal regimes in the field of environmental law and the law of product liability. J.J Theprinciple ofpacta sunt servanda and the threat created by the over-riding principle of reasonableness in contractual relations There is nothing fundamentally new in the principle that contracting parties must behave in a reasonable manner but it would be foolish to deny that there exists a certain conflict between the principle that contracts must be strictly upheld according to the agreed terms and the principle that these terms should not be permitted to create an unacceptable detriment to a contracting party. The principle of Treu und Glauben is expressed already in BGB Article 242 and similar legislation exists m many other jurisdictions. In Sweden you will find the principle in Article 36 of the Statute on Contracts. The manifold condieting interests in modern society, and the difficulties at the time of contracting to foresee future developments, make the task of the legislator to specify the exceptions fromthe principle of pacta sunt servanda impossible and thus result in the “Flucht in die Generalklauseln”.'"^ But, as has been said, “es gilt nur vorsichtig die Grenzen zu ziehen”.'^ But who does it? It is no longer the legislator — after careful investigation and consultation of the interests concerned by the matter at issue — but by the judge called upon to decide the specific matter placed before him. Perhaps we should forgive himif his attention is focused on that matter rather than on the need for the common good to lay down some principle as a guideline for the future. But, even if he does, the effect of such a guideline would only seldom be of the same kind as a rule of lawestablished by legislation. Thus, shifting - by means of a general clause — the task to create guiding principles from the legislator to the courts tends to create a threat to the consistency of the law and the possibility of the affected interests to foresee the outcome of future dispute resolution. The matter is further aggravated by the difficulty for the courts to seek guidance from traditional norms, as these are now being threatened by the impact of new contracting techniques and shifting views as to the distribution of risks between the affected interests in the field of consumer and environmental law. '■* J. W. Hedemann, Die Flucht in die Generalklauseln, Tubingen 1933. See RGZ (1922) 103 p. 328 where the fear of the lower court that an interference with the contract would lead “zur völligen Rechtlosigkeit auf demGebiete des Vertragsrechts” was brushed aside by Reichsgericht stating: “Diese Befiirchtung ist unbegriindet; es gilt nur vorsichtig die Grenzen zu ziehen . .
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