The Old and the New Limits to Freedom of Contract in Europe

Abstract

The structure of the relationship between the individual and the community or the state is not definite at the European level. However this is a crucial point for the definition of the ground-rules in private law, considering, in particular, that European jurists normally ascribe to private law a constitutive role both in the functioning of the integrated market and in the construction of a European citizenship. In contract law the relationship between the individual and the community or the state is mainly designated by the definition of freedom of contract and its limits. On the scene of European law, however, the question of the limits of freedom of contract finds very different and contrasting solutions. This article identifies three different modes of approaching the question, which we have experienced and are currently experiencing in Europe; they are respectively described as the paternalistic, the social and the perfectionist model. Although recent developments in the harmonisation process show a propensity for a combination of the first and the third model, this paper argues that the social model still has a chance to achieve a key role in European contract law.