THE FUNDAMENT OF THE NOTION OF CONTRACT
IN THE ROMANIAN LAW BEFORE AND AFTER THE
RETURN TO THE LIBERAL MARKET ECONOMY
Author(s): Dumitru Văduva / Language(s): English
/ Issue: 1/2017
Keywords: freedom of will; contract; market economy; legislation
The principle of the freedom of action has no legislative mention, being more like
an explicative theory. The wording „freedom of action” is explicative by its semantics.
“Autonomy” represents the existence in and for itself, resulting that the freedom of
action reveals the fundamental principle of the contract: it is created by the will, which
is free, namely is independent from the law, being the one that generate rights and
obligations, the law having the role to protect it.
Having the position as founder of the contract, it is understood that the free will
explains the other rules which organize the establishment and effects of the contract:
the mutual consent, the suppletive feature of the civil legal norms, the interpretation of
the will according to the inner will of the parties, resulted from their common
intentions; the mandatory force and relativity of the effects of the contracts.
The principle of the freedom of will has been re-brought to debate starting with
the second decade of the 20th century, considering that its application created the
environment for exploitation based on the contract from the person found in an
economic superiority in relation to the one found in inferiority. This theory was in
conformity with the new social philosophy of the mentioned era, when the ideas of
socialism were increasingly influent including among lawyers. The first legislative
measures which seemed, at that time, a serious violation of the fundamental principles
of the contract: the freedom of will and its corollary, the principles of the freedom of
contract, but were in consensus with the legal principles of contractual justice,
acclaimed also by the social theorists, for the protection of the weak, were: redefining
the employment contracts, this rethinking leading to the composition of a new branch of
law, labor law; and the imposition of a protective legislation for tenants, under the
conditions in which because of the lack of housing, the owners had their own law of
lease contracts, thus breaking the contractual balance.
Today, in our national legislation, under the influence of the European
Community and then of the European Union, the legislation in the area of the private
law expands towards the area of the norms of public order and morals, existing in the
legislation prior to 1990, but which was limited to a classic public area of good morals,
the one of the imperative rules of organization for family and state.
Under these new circumstances of the proliferation of the area of the public and
good morals norms, we consider that the principle of the freedom of will is fundamental
in explaining the foundation of the contract.
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