The Contractual Freedom as an Essential Condition for the Existence of the Contract in a Global Economy

Abstract

“The idea of the contract as a sheer and complete subjective will which appears without individual barriers and without restrictions that derive from objective, factual, or legal conditions, is an abstract idea that cannot be reflected in the reality we live." The contractual freedom makes possible the maximal development of the economic relations based on free and voluntary cooperation between the interested parties. " The private economic initiative is free, but cannot happen if it harms the common interest or damages the safety, freedom or human dignity". In conformity with the article 660 of the Civil Code "The parties can freely define the content of the Contract by respecting the restrictions provided by the current legislation". For the contract to be valid according to the article 663 of the Civil Code there must exist the reciprocal agreement between the contractual parties which is an essential condition for its existence. The content of the autonomy of the will is not limited only in the ability of the parties to make contractual agreement but more specifically to allow the parties to decide about the rules of signing of the contract on their own. But, is it possible to discuss the contractual freedom more practically only because two or more parties, without any influence from outside sources, agree to improve some of their interests? Nowadays, the private autonomy is more limited than in the past. The development of a modern globalised economy, has had an influence upon the traditional idea of the contract which is understood as a “ converge of purpose between the parties". The economy has generated the massive standardization of the goods and services in the marketplace by defining the depersonalizing process of the individual contracts, by affecting the text of the contract, where in most of the cases there is no individual negotiation among the parties but the contract is one-sidedly prepared by the company and the consummers accept it as it is, without being able to affect by their will in its content.

DOI: 10.5901/mjss.2013.v4n11p429