4 Limitations with regard to third parties

There is one principle in the section on contractual freedom in the Principes directeurs which is not expressly stated in the DCFR. It provides that ‘Parties can contract only for themselves, unless otherwise provided. A contract can produce an effect only in so far as it does not result in an infringement or unlawful modification of third party rights’.1. The DCFR does not contain explicit provisions at such a general level on the relation of contracts to third parties. It takes it as self-evident that parties can contract only for themselves, unless otherwise provided, and that contracts, as a rule, regulate only the rights and obligations between the parties who conclude them. The DCFR merely spells out the exceptions, principally the rules on representation2. and the rules on stipulations in favour of a third party.3. So far as the attempted invasion of third party rights is concerned the DCFR takes the view that this will often be simply impossible to achieve by a contract, because of the content of other rules. The parties to a contract could not, for example, effectively deprive another person of his or her property by simply contracting to this effect. There is no need for a special rule to achieve that result. In so far as such invasions or infringements are possible they are dealt with partly by the rules on illegal contracts4. and partly by the rules in Book VI on non-contractual liability for damage caused to another. An example of the latter is the inducement of a contract party to breach the contract. The DCFR qualifies such conduct as a ground for non-contractual liability under Book VI.5. A rather different case is when the purpose of a contract is to disadvantage creditors, usually by putting property beyond their reach. Classical systems based on Roman law tried to respond to such contracts by the so called actio pauliana, which gave the affected creditor an action against the contract party holding the property in question. The DCFR does not contain explicit provisions on this issue. The reason is that — although an actio pauliana can be brought before the opening of insolvency proceedings — the issue is closely linked to insolvency law, with which the DCFR does not deal. But it would be possible to deal with fraudulent conveyances which aim at the disadvantage of creditors under the rules of Book VI.6.