The Autonomy of Will in Contract Law: Limits and Consequences

Extract

[...] Thus, the content of the contract is not freely determined by one of the parties. All these limits are therefore relative to public order according to articles 1102 and 6 of the Civil Code. Thus, the general interest now takes precedence over private interest. The legislator also infringes on the principle of binding force. In fact, the legislator allows a co-contractor to retract. He thus allows him not to execute the performance. Finally, the law infringes on the autonomy of will through the principle of consensualism, because several exceptions have emerged in which the law requires the writing of a document or formalism for informative purposes. [...]

[...] In addition, with the development of consumer law in the 1950s, the legislator intervened to protect the weaker contracting party. In fact, the legislator multiplied consumer protection laws, which prohibit abusive clauses by allowing judges to declare their nullity. This is the establishment of a protective public order. Thus, the content of the contract is no longer free. Furthermore, the adhesion contract limits contractual freedom, because unlike the contract of free will, it does not allow for the negotiation of certain clauses that are already determined in advance by one of the parties. [...]

[...] Does the autonomy of the will of the parties to a contract have any limits? L2 Law Dissertation on the theme of the guiding principles of the contract: 'Does the autonomy of the will of the parties to a contract have any limits?' The autonomy of the will is 'the organization of the relationships of individuals by their own will in the concern for the well-being together.' Rousseau. According to the Civil Code, the contract is 'an agreement of wills between two or more people intended to create, modify, transfer or extinguish obligations.' The contract is then a legal act that requires the participation of at least two people and can have 4 objects. [...]

[...] The Consequences of the Autonomy of the Will The contracting parties must respect the obligations for which they have committed themselves freely. Conversely, they cannot be subject to legal obligations that they would not have wished, which would infringe on their individual freedom. The autonomy of the will gives rise to several consequences, which are consensualism, contractual freedom, binding force, and the relative effect of the contract The autonomy of the will is framed by the judge who has only a power of interpretation A. [...]

[...] However, a certain decline in the autonomy of the will is observed, which sets limits on the theory in the 20th century. Indeed, a society is emerging in which the State is interventionist to protect the general interest as well as the inequalities between the parties in an increasingly consumerist society. This intervention is carried out through the judge and the law (II). II. The decline of the autonomy of the will The autonomy of the will is undermined by the increasingly growing interventionism of lawmakers and judges in order to protect the contracting parties from inequalities, in order to protect the weaker parties. [...]