Kaminskaya E.I. Freedom of Contract According to the French Civil Code: Legal Wording and Interconnection of Rules

Abstract: The present article focuses on a fundamental legal principle of freedom of contract as it has been introduced and brought into life by Section 1134 of the French Civil Code. Any contract is naturally based on the discretion of its parties and cannot be legally formed at the absence of such discretion, the said idea being fully supported by the French civil law. It is, however, the vital concern of the authors of the Code that a certain counterweight shall necessarily be applied while enforcing the principle of the freedom of contract, and namely that of fair dealing rule. Correspondence between, and not pure confrontation of, the two abovementioned doctrines – those of liberty (freedom of contract) and of duty (“pacta sunt servanda”) in contractual relations, along with discretional and strict law rules, – makes the main feature of the French approach as compared to other national civil law approaches. The author of this article insists that the legal tools used by the French Civil Code with the view to marry personal rights to public interest be extraordinary. Limitations imposed on the right to contract which are specially provided by the text of statute present but a point of departure for the French civil law. The Civil Code goes further and establishes priorities and assumptions so that courts are thereby offered general directions in application of law. Noticeable is the fact that under the French contract law priority evidently goes to public interest, and not to individual one, so that the French version of the freedom of contract doctrine turns out to be seriously restricted.

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