May contracts be entirely free? Some comparative remarks on various approaches to freedom of contract

Abstract

The range of the real freedom of contracts in private law was both a growth factor of societies as well as a measure of the extent of their internal changes. The practice worked out by the Roman lawyers, though limited formally by contract nominalism, became the basis of modern-day solutions. In spite of a simultaneous reconstruction of the social and economic systems which may be summed up after H. Maine as a development from status to contract – the principles of the freedom of contract together with their fundamental limitations, had remained valid. In this context, one may mention the laws which protect the rights of economically weaker subjects, such as the ban on the loss of the pledged asset (lex commissoria), the permissible relation of the price to the value during sale transactions (laesio enormis), maximum prices on basic goods (edictum Diocletanii de pretiis rerum venalium). A special but continually valid issue which is analyzed, among others by Cicero, is that of mutual honesty of vendors and purchasers: to what extent can they make use of the information which is unknown to the other party; at what point we can say that they have overstepped the boundary-line of stratagem. As regards the latter issue, there is no uniformity of opinion in different legal systems; it seems that it is the principle of maximum facilitation of trade that takes the upper hand and is not unknown to the Roman law. The author of the article also analyzes the beginnings of actio de dolo and the different contemporary court experience. In conclusion, the author poses an open question concerning the future of contract law in view of the too far advanced freedom of contracts.