The Principle And Restriction On The Freedom Of Contract

Freedom of Contract, Absolute Ownership and Liability of Fault were deemed as the three primary principles of modern private law. Freedom of Contract, particularly reflecting the concept of equity and the concern of humanism, has been the core and spirit of the contract law. As the social and economic activities change, the once sanctified principle of Freedom of Contract has been challenged in the modern contract theory, the cheers for the death or decline of it has been punctuated, and the limitation for the Freedom of Contract has been one of the most important themes of the modern contract theory as well. This thesis tries to reveal the original features of Freedom of Contract by sorting out the historical context of Freedom of Contract, analyzing the conceptual content of Freedom of Contract, and the jurisprudence interpretation of the performance and reasons of Freedom of Contract and the limitation for Freedom of Contract as well, to justify that Freedom of Contract is still the primary principle of the modern private law and being irreplaceable for the constitution of contractual justice.Part I analyses the content of contract and Freedom of Contract. As a concept in the field of civil and commercial law, the definitions of contract differ in the various legislations, while the basic content is largely identical. This thesis tends to define the concept as that contract is a bilateral legal transaction aimed to establish, alter or eliminate the rights and obligations by and between civil subjects. The essence of Freedom of Contract is that the unanimous intention of the contractual parties constitutes the premise of the establishment of the contract and the origins of the validity of the contract. Specifically, Freedom of Contract contains several layers of meanings: contract is the result of unanimous agreement by the contractual parties; contract is the result of free choice; and contract reflects the sanctity and relativity of contract.Part II traced back to the pre-modern history of contract. Though not giving a definite thought of Freedom of Contract, the philosophy of Ancient Greece was so extensive and profound that the Dialectics, the Justice Theory of Aristotle and the Natural Law theory of Stoicism had exerted deep influences on the development of the Contract Theory in its methodology, establishment of specific system and the thought of contract, respectively. The Rome Times is the enlightening time of Freedom of Contract. The establishment of Contractus Consensu in jus gentium represented the Maximum Achievement of contractual legal system of ancient Romans, reflecting the change of contractual theory from Pharisaism to Parteiautonomie, foreshadowing the final formulation of modern principle of Freedom of Contract. The early days of the Middle Ages, as a dark time, was a vacancy of the development of the contract. Until the 11th and 12th century, the general theory of contract law was built on the ground of the renaissance of the Roman Law from a secular contractual law theory, generating the energy for the establishment of Freedom of Contract in the modern time.Part III refers to the establishment of Freedom of Contract in the modern time. The establishment of Freedom of Contract in the modern time had a profound historical context: the market economy with free competition provided economic basis; the representative democracy system provided political basis; and the classic Natural Law, the humanism and the liberalism of economic theory provided theory basis. Through the case Locle, the thesis introduces the establishment of the principle of Freedom of Contract in every countries, and gives a jurisprudence interpretation to the pursuing of the subjects for the independent personality and the establishment of the standard of right that Freedom of Contract reflects.Part IV rethinks the Freedom of Contract in the modern time. Due to the inability to adjust to the changed social and economic conditions after the 20th century, the sanctified Freedom of Contact had been severely challenged. The limitation for the Freedom of Contract, other than the decline or even the death of the Freedom of Contract, actually is the restoration of the original meaning of Freedom of Contract and the correction of Freedom of Contract. The thesis simultaneously analyze the reason for the limitation of Freedom od Contract in the 20th century, namely that the change of economy, politics and culture is the objective external reason for the limitation, and the defect of the modern theory of Freedom of Contract is the internal reason for the limitation. The limitation for the Freedom of Contract reflects the defect of the absolute individual rights theory, and the thesis gives a jurisprudence interpretation based on the Judicial Sociology theory.Part V focused on the limitation on the Freedom of Contract in the temporary. By analyzing two classic cases, the thesis displays the interference of Freedom of Contract in both the legislation and judicature in the temporary contract law. For the specific provisions, the limitations for Freedom of Contract conclude the limitations on both the form of entering into a contract and the content of a contract. Through the discussion of the limitation of Freedom of Contract, the thesis makes clear that Freedom of Contract is still a primary principle of the temporary contractual law.Part VI focused on our contractual law system and Freedom of Contract. The history of our contract law system is very short. Though the relatively complete contract law has been made, the principle of Freedom of Contract has been established and the necessary limitation has been set, we cannot deny that the basis of our contract law is quite weak. Therefore, the thesis gives suggestions in the following three ways: continuously paying attention to the interaction between the contract system and the real contract activities; positively nurturing the private law philosophy; and further promoting the equity of the subjects.