contractual freedom
LexInter | October 11, 2007 | 0 Comments

CONTRACTUAL FREEDOM

Contractual freedom derives from Article 4 of the Declaration of Human Rights ( freedom consists in being able to do anything that does not harm others )

The principle of contractual freedom , like contractual autonomy and the immutability of agreements, constitute fundamental principles which fall under the law, but the Constitutional Council refuses a constitutional value to the principle of contractual freedom (Constitutional Council, August 3, 1994, JCP 1995. II. 22,404). The principle of contractual freedom was enshrined in article 1102 of the Civil Code by the ordinance reforming contract law .

Civil Code (provisions applicable to contracts concluded after October 1, 2016
“Art. 1102.- Everyone is free to contract or not to contract, to choose his co-contracting party and to determine the content and form of the contract within the limits set by law.
“Contractual freedom does not allow derogating from the rules which concern public order .

Contractual freedom

Contract law is dominated by the principle of the autonomy of the will . Challenged by interventionism, both in terms of contract formation and execution, in particular due to the development of membership contracts, it regains strength with the decline of interventionism.

The principle of contractual freedom is that what is not prohibited is permitted. In addition, it implies that (subject to obligations provided for by law such as compulsory insurance) everyone is free to contract and to choose his contracting party.

Contractual freedom is the freedom for the parties to contract or not to contract, to enter into a contract freely without condition of form and to determine its content. The parties are free to conclude a contract and to determine its content, within the limits set by the mandatory provisions because of public order . Contractual freedom is also the freedom of proof, in interpretation, of sanction for non-performance, prescription and foreclosure. In all these areas the parties can agree on contractual arrangements.

An extension of this principle is pre-contractual freedom: negotiators are free to enter into negotiations, to conduct their negotiations and to end them as and when they see fit.

Contractual freedom is reflected in the development of practice contracts.

v. Negotiation of contracts

The principle of contractual freedom was implicit in former article 1134 of the Civil Code

The legally formed agreements take the place of law for those who made them.

 the judgment retained, rightly, that the granter has the right to deal with the co-contracting party of his choice, that he is not required to justify his decision or to communicate the criteria according to which this choice is exercised; that the means are unfounded; Cass. com. April 1998

The principle of contractual freedom applies to the administration

Civil Code, former articles 1780, 1708, 1944 and 2003

Court of Cassation, First Civil Chamber, May 20, 2003, SA Surgical and Obstetric Clinic of Choisy-le-Roi against M. Janssenn; Cour de cassation, first Civil Chamber, March 19, 2002, André, M.-E., JCP E Semaine Juridique (business edition), n ° 12, 03/18/2004, pp. 462-462

KEY WORDS Perpetual commitment; Unilateral wrongful termination; Valid commitment, duration less than the duration of professional life; No violation of individual liberty; Contractual freedom

FREEDOM OF CONTRACT IN THE PRINCIPLES OF EUROPEAN CONTRACT LAW 

Article 1: 102: Freedom of contract
(1) The parties are free to conclude a contract and to determine its content, subject to the requirements of good faith and the mandatory rules laid down by these Principles.
(2) The parties may exclude the application of any of these Principles or derogate from them or modify their effects, unless the Principles provide otherwise.

 

 

 

Unidroit Principles

The Unidroit principles affirm the principle of contractual freedom at the head of the general provisions, in article 1.1.

The parties are free to contract and ‘ determine its content.

The commentary underlines the fundamental importance in the context of international trade., And affirms that the right of commercial operators to decide freely to whom to offer their goods or services and from whom to receive them, as well as the possibility for them to be to agree freely on the terms of each contract, are the cornerstones of an open, market-oriented and competitive international economic order.

1. Freedom of contract: basic principle in the context of international trade

The principle of contractual freedom is of fundamental importance in the context of international trade. The right of traders to decide freely to whom to offer their goods or services and from whom to receive them, as well as the possibility for them to agree freely on the terms of each contract, are the cornerstones of an economic order. international open, market-oriented and competitive.

2. Sectors of ‘ economy where n ‘ there is no competition

There are of course a number of possible exceptions to the principle laid down in this article. With regard to the freedom to enter into a contract with any other person, there are sectors of the economy which States may decide to exclude from free competition for reasons of public interest. In such cases, the goods or services in question may be required only from the single existing supplier, which will most often be a public body, and who may or may not have an obligation to enter into a contract with any person who makes the contract. request, subject to the availability of goods or services.

3. Limiting ‘ party autonomy by mandatory rules

As regards the freedom to determine the content of the contract, the Principles themselves contain in the first place provisions which the parties cannot derogate from. See Article 1.5 There are also mandatory rules of public and private law promulgated by States (e.g. antitrust laws, exchange control or price laws; laws imposing special liability regimes or prohibiting clauses manifestly unfair contractual obligations, etc.), which may prevail over the rules contained in the Principles. See article 1.4.

 

Principles of European contract law:

principle of contractual freedom Article 1: 102

freedom in the conclusion of the contract    article 2.11

 

 

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