Genesis of the principle of freedom of contract

Abstract

The relevance of the study lies in the fact that the article is devoted to the genesis of the principle of freedom of contract. Attention is paid to the correlation between the principles of contractual obligation and freedom of contract, taking into account existing legal doctrines that reflect different approaches to their understanding and correlation. The purpose of the article is to outline the genesis of the principle of freedom of contract, taking into account the methods of interpretation and scientific doctrine. From the point of view of methodology, the article is built taking into account the analysis of the doctrine, national views and legislation, which cover the boundaries of understanding the principle of freedom of civil law contracts. To achieve the goal of the study, the following methods were used: formal-logical, generalization, linguistic analysis, and comparative law method. The methods presented make it possible to objectively and fully outline the legal nature and genesis of the principle of freedom of civil law contracts. The following results were obtained in the process of the study. The author asserts the need to maintain the vector of elegant socialisation of contract law, which is based on the ideas of F. Lotmar and O. von Hierke. (in particular, the idea of a “drop of social oil” (Tropfen des sozialen Oels). Courts must take into account the principle of contract bindingness, the rules for interpreting the contract until it is clear that the parties are acting unfairly, unreasonably or trying to evade the performance of the contract by applying the principle of freedom of contract. Given that contracts occur in both civil and labour law, there is no single trend in contract law to formalise requirements for the procedure for coordinating the wills of the parties. The author also found that if the socialization of the contract and the fairness of the terms of a particular contract are inferior to the bindingness of the contract, then in this case, the economic efficiency of the contractual model outweighs the constitutional and human value of human rights. The author also came to the conclusion that the doctrine of contract fairness is inferior to the doctrine of contract bindingness due to insufficient depth of elaboration, as it contains diffusion in the form of “blurring” of the criteria for its application in practice.