41 Treating like alike

The most obvious manifestation of this aspect of justice in the DCFR is in the rules against discrimination1. but it is an implicit assumption behind most of the rules on contracts and contractual obligations that parties should be treated equally by the law unless there is a good reason to the contrary. The big exception to the rule of equal treatment is that there are situations where businesses and consumers are not treated alike. This has been mentioned already and is discussed further below. The ‘equality’ aspect of justice also surfaces in a rather different way in the notion that if both parties have obligations under a contract what goes for one party also goes for the other. This idea — sometimes called the principle of mutuality in contractual relations. — appears, for example, in the rule on the order of performance of reciprocal obligations: in the absence of any provision or indication to the contrary one party need not perform before the other.2. It also appears in the rules on withholding performance until the other party performs3. and in the rules allowing one party to terminate the relationship if there is a fundamental non-performance by the other,4. although the primary explanation for these rules is the need to provide effective remedies to enhance contractual security. A further example of the ‘equality’ aspect of justice can be seen in the rules on a plurality of debtors or creditors: the default rule is that as between themselves solidary debtors and creditors are liable or entitled in equal shares.5.