The Principle Of Freedom Of Contract And Restrictions

Freedom of thought in the contract would like to promise origins in ancient Rome into a contract, accompanied by the development of capitalism but to shine, and confirmed in the capitalist countries, the Code of the French Civil Code, since absorbed by the national legislation and established the basic principles of contract law, Freedom of contract is the basic principle of contract law, the spirit of the contract. Freedom of contract is the basic principle of contract law, the spirit of the contract. Freedom of contract means the contract is made interests of the arrangement on the autonomy. Its effectiveness is rooted in consensual between the parties. First, the concept that the contract is based on mutual agreement between the parties; Second, it also stressed that the contract entered into in the case of norms, intervention from outside forces including intervention from the Government or the legislature--the freedom of choice.However, since the beginning of the20th century, the socio-economic structure changed dramatically, social organizations, complex and huge air, monopoly intensified, large-scale social production and consumption, the rapid development of public utilities, the issue of protection of vulnerable groups such as consumers, workers, in substantive equality the transaction process between the main increasingly become a serious problem, and reversed the tide of freedom of contract. Freedom of contract as the basic principles of contract law, but freedom is not the full contract law, which allows full freedom of the subject and not be restricted, will lead to the freedom of Mishap. If freedom was absolute, would lead to alienation, abuse is nothing to worry about them, everyone will become victims of alienation of freedom of contract.Lack of rational respected the freedom of contract, the wanton abuse evolved into social Darwinism. Thus, the restriction of freedom of contract is the development of the historical necessity of the contract.Form of freedom of contract cover up substantially unfair, freedom of contract is a matter of fact whether there is? Parties whether based on their free will, equality in contractual behavior? This neglect is substantial inequality of the parties assume that planted a hidden danger for the freedom of contract theory, there has been the alienation of the contract. Marx explained:the so-called "alienation" refers to the original design by people the power to change society, and ultimately into humans can not control the power, in turn, affected by this power control, limit, and can not get rid of it. Freedom of contract is the essential attribute of the contract, but the freedom of contract is not a goal in itself, relying solely on the freedom they can not achieve the purpose, to limit the specification is to achieve this purpose the product. On the surface, the restrictive norms deviate from the purpose of the autonomy of private law to a certain extent, but restrictions and freedom are closely united, limit the freedom of contract in order to protect the substance of freedom of contract, the better to achieve substantive justice of the contract.This paper is divided into four parts on the principle of freedom of contract and restrictions,(A) of the contract and freedom, is mainly elaborated the concept of freedom of contract and the contract."Contract" concept of the basic concepts of social life, exists in different forms of social life, only to understand the contract, in order to understand human society and its contacts and relations between the contract is a key to open human life. On the concept of contract, civil law is widely recognized desirable that the common law generally recognized by the promise said.(B) the historical evolution of freedom of contract theory and evaluation, explore the ancient Greek philosophy from Western philosophy a source of start combing the freedom of contract to develop the historical context, describes the mature stage of the freedom of contract restrictions from the embryonic stage to establish the stage and then by the full growth process.(C) The restriction of freedom of contract principles, Equality of the parties to the contract, freedom is the prerequisite for modern contract law theory highlights the inherent flaws due to the inequality of the parties and the social, economic. The social problems caused by the principle of freedom of contract to make people question the freedom of contract, to re-examine the status and content of freedom of contract, limitations on the principle of freedom of contract is also prevalent, state interventionism is beginning to flourish, the gradual strengthening of restrictions on freedom of contract. As a result, the causes, manifestations and significance of freedom of contract limited to the points described.(D) Freedom of contract and contractual justice analysis. Justice from the form of contract to contract in real terms in the justice explained, to analyze the present status of and the freedom of contract. Contract from the formal point of view is not free, but only the true meaning of the principle of freedom of contract to restore and remedy the freedom of contract is free from the traditional form towards containing the substance of freedom of the modern concept of contract justice, and freedom of contract in the special status of China’s market economy context generalization.