Limitele și limitările libertății de voință
The boundaries and limitations of freedom of will

Summary/Abstract: This study aims to define the scope of contractual freedom and the legal mechanisms that limit this freedom. Freedom of will is associated with the public law norm, which, through its generality – though incapable of producing anything concrete – confirms and establishes the limits of private law, integrating the concordant interests of the parties into the framework of social order and balance. The limits of autonomy of will, as the foundation of contractual freedom and the binding force of the contract, are defined by their alignment with the requirements of mandatory norms, public policy for guidance and protection, and public morals. The study revealed that the limits of freedom of will cannot be reduced to the state order but must be analyzed within the broader context of the limits set by the community order. In seeking to identify the mechanisms that limit freedom of will, the study analyzed adhesion and forced contracts, the impact of mandatory rules on this freedom and on the principle of consensualism, as well as the right of first refusal. The limitation of this freedom through contract modification raised issues such as the indexation and adjustment of claims, the adaptation of the contract, and even its termination due to unforeseeable circumstances, as well as the reduction of excessive penalties, in order to ensure the proportionality of the punitive function of penalties. In adhesion contracts, which have been extensively analyzed, clauses unilaterally established by the drafting party take on a standardized character in civil transactions, highlighting the impact of economic inequality between the contracting parties and the fact that acceptance of the standardized offer does not express the signatory’s true and free will. These clauses in adhesion contracts that involve abuse trigger mechanisms to protect the weaker contracting party. The strict delineation of these clauses has necessitated an examination of both accepted and rejected standard clauses, as well as the specific nature of clauses in framework contracts, in comparison with the forms taken by abusive clauses. A comprehensive analysis of the legislative limitations placed on consensualism, as well as the forms and conditions under which these limitations operate, has revealed that, at present, our legal system has elevated the formal requirements of a legal act to the level of substantive formalism, which pertains to its very nature and validity. The function of the legal preemption in limiting freedom of will has also been examined both in terms of the conditions under which it operates and in terms of the consequences of a contract concluded in violation of this right, which takes the form of a contract subject to a resolutory condition. The analysis of the contract, its foundation -autonomy of will – has been correlated with economic and social determinants that shape aspects related to the extent of the onerosity of the performances. In this regard, the binding force of the contract is called into question by the process of indexation, which operates ipso iure, and the judicial adjustment of the claim. Similarly, the modification or termination of the contract due to unforeseeable circumstances raises, under certain conditions, the issue of the assumed risk being exceeded and the binding force of the contract being affected. The occurrence of unforeseeable circumstances is associated with an exceptional change in the conditions existing at the time the contract was concluded, which were not and could not have been foreseen at that time. Without these exceptional changes amounting to force majeure – which it does not exclude, provided it does not call into question the performance of the contract – they are likely to affect the balance of consideration between the parties’ obligations, thereby undermining the principles of good faith and equity upon which contractual relationships are based. This objectively caused limitation prioritizes the principle of freedom of will in the context of negotiations and the reconciliation of the parties’ interests, in the allocation of losses and benefits within the limits of the proportionality established in the original contract. The court’s subsidiary intervention in the event of failed negotiations aims to achieve these objectives by amending the contract, allocating losses and benefits within the limits of the proportionality established in the original contract, or terminating the contract. As for the reduction of penalties, we can discuss the limiting of the binding force of the contract only if it is excessive and only on the condition that its punitive function is preserved, as evidenced by the disproportionate nature of the reduced penalty in relation to the principal obligation.

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