Ecological Contract
Antonio Paolo Seminara
Since the end of the 20th century, the ecological paradigm has taken centre stage with the legal recognition, in legal systems and some constitutions, of the right to a healthy environment. Based on the assumption of human eco-dependence (Lomas, 2024), respect for the environment is prioritised as essential for the permanence of life on Earth. For this reason, some constitutional discussions identify nature, animal populations and future generations as parts of the same social contract (Lohse & Berros, 2023).
In developing an effective response to environmental issues, the law appears as a ‘scar’ that emerges to heal the fractures of historical time (Berros, 2023) (for similar consulting: Berros & Carman, 2022). The centrality of the environment in legal systems is reflected in ordinary law: for example, the Argentine Civil and Commercial Code of 2015 subordinates the exercise of rights to respect for the environment (art. 14).
Ecology enters private law institutions: notice the reflections of environmental protection in the discipline of property rights, as well as the regulation of non-contractual liability for environmental damage.
Among the main instruments for an ecological renewal of law, central is the contract imagined as a means for the enjoyment of common goods: a highly diversified collection of legal values of the community, based on the principle of solidarity and the valorisation of the person as the centre of the legal system. Through negotiation, techniques can be practised to ensure that individual interests are subordinated to the collective interest.
In the case of the environment, the contract can serve to ensure that the link between people with needs and the things capable of satisfying them is fully applied with respect to the ecological context, in the spirit of relational continuity between communities and resources based on bonds of social solidarity (Núñez, 2024): the contract becomes a means of synthesis between development imperatives and sustainability demands.
The ecological contract is the paradigm in which ecology is not so much the object of the relationship, but rather the purpose to whose protection private autonomy tends. Its function is to promote environmentally friendly practices, correct the market and prevent risks of damage. Individual responsibility becomes social responsibility to the extent that environmental principles and requirements are included in the contract, even if not expressly mentioned.
Today, the ecological contract represents a heuristic category capable of capturing new interpretative, applicative and systematic developments: a working hypothesis and a long-term evolutionary perspective (Jannarelli, 2015). There are two possible interpretations of this: a milder one, which keeps ecology outside the ontology of business, and a structuralist one, which assumes that the contract is causally shaped by environmental factors.
The first interpretation, while recognising the impact of ecology on private autonomy, considers that with such an operation the contract would not lose its role as an instrument of self-regulation of private property interests (Pagliantini, 2016); thus, it would remain independent of the environment and would not affect its validity. According to this reading, attributing an ecological meaning to the contract does not necessarily mean subordinating it to environmental protection purposes, but rather valuing it as a functional regulatory instrument for the legal project of balancing private autonomy and the environment. Accordingly to this reading, the ecological conformation of the contract could be maintained on an exegetical level: in case of doubt between meanings, preference would be given to the one that guarantees an ecological effect.
According to the structuralist interpretation, however, environmental protection becomes a relevant element of the cause of the ecological contract (Pennasilico, 2014), in the double sense of converging the interests of the parties together towards ecological utility and to oblige the responsible use of natural resources in the exercise of the services (Pennasilico, 2016; ibid., 2017). The contract thus absorbs the principles that inspire environmental legislation, hence the revision of the classical conception of the contract, which becomes a place to explain eco-sustainable legal relationships. In this way, the contract includes the pursuit of the general interest in environmental protection, within the framework of a social market economy that transcends the ordo-liberal model: if environmental justice is interpreted as a general legal principle (Espejo, 2015), which can be formulated on the basis of certain constitutional and primary norms, it is possible to condition the content of contracts.
Following this exegesis, the principle of sustainable development constitutes the appropriate merit parameter for judging the validity of contracts which, although lawful in abstract, may harm the environmental interest. Along with its constitutionalisation in some legal systems, its interpretation as a rule of public order could lead to an intervention of contracts with detrimental effects on the ecosystem, or simply to an amendment so that they are environmentally sustainable. Environmental protection belongs to public order (Galdámez, 2017), as is the case with the protection of indigenous property, whose rules have been interpreted as public order norms that may affect the effectiveness of certain contracts.
As can be seen, there is no single type of ecological contract: the ecology of the contract is not a factor related to the type of contract but rather to its internal structure and the effects it produces in its execution. Sustainability thus enters commercial law through practices inspired by the management of natural resources, shared between the public and private sectors, in line with the principle of subsidiarity.
Some new-generation contracts have a typically environmental cause, such as the Chilean ecosystem services payment contract, in which one of the parties is obliged to preserve, restore or make a sustainable use of ecosystems to maintain or recover ecosystem services in exchange for compensation from a payer. The objective of the contract is to maintain, manage or restore the biodiversity and ecological function of the property, generating reciprocal obligations. Special contracts for the exploitation of lithium contained in the Chilean brine, which must comply with special laws, belong to the same model (Zúñiga Cañete, 2025).
Similar phenomena are the English conservation covenants, through which a landowner defines with a public or private non-profit entity the modalities for the conservation of the natural heritage in exchange for a payment. This constitutes an innovative model of ecocentric horizontal governance with a business nature, such as the Co-governance Agreement of December 2024 between the Association of Mapuche Communities, the Ministry of National Assets and the National Forestry Corporation for the shared management of the southern sector of Villarrica National Park (Cruz Parada, 2025).
A particular type of ecological contract is one that establishes real rights for the conservation of the environmental heritage of a piece of land for the benefit of a specific natural or legal person. These must be executed by public deed registered with the Land Registry and establish levies on the property for conservation purposes.
The statutes of associations of economic operators that impose the adoption of eco-sustainable behaviours and requirements, with possible rewards for compliance, may refer to the same paradigm. The formation of a contract in an ecological sense can occur with the regulatory imposition of green clauses on contracts that are not typically ecological. In these cases, it remains to be clarified how to interpret ambiguous expressions or non-compliance with clauses in order to prevent business conduct from being reduced to sterile greenwashing. A virtuous experience is the European Union’s discipline on public contracts, which provides for the possibility of making the award of contracts subject to compliance with green criteria: in this sense, we talk about Green Public Procurement for works and services contracts; other examples are techniques through which competitors are required to adopt a certain method of production and sale, such as the Ecolabel.
Another memorable experience is that of the biodiversity stewardship programme, introduced in South Africa in 2003. In this programme, local governments entered into contracts with natural resource owners which, while leaving control in private hands, impose obligations to safeguard biodiversity and collective interests with technical support from the public authority.
In private relations, green franchising is worth mentioning, where a company provides its affiliates with know-how on how to reduce polluting emissions, imposing compliance with sustainability standards (Landini, 2013). Furthermore, the sustainability of the contract can be expressed in the spontaneous determination of the object of the obligations: consider contracts relating to the production and sale of consumer goods made from biodegradable materials, or the adoption of business models appropriate to the circular economy.
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