Wolność umów, czy wolność zrzeszania się w prawie spółek handlowych
Freedom of contract or freedom of association in the law of commercial companies

Summary/Abstract: Commercial company law, which is part of private law, is permeated by the principle of autonomy of will. The prevailing view is that this principle is expressed in the application of the more detailed principle of freedom of contract, taken from the law of obligations. Despite the existence of some arguments in favour of this view, closer examination allows it to be questioned. The position of German science is authoritative here, as it seems to depart from the use of this concept in commercial companies law in favour of a more adequate one, i.e. the principle of freedom of association. The content of this rule is more suited to the essence of a commercial company. Meanwhile, an attempt to extend the content of the principle of freedom of contract to the entire situation of a partner and a commercial company, especially a capital company, leads to the conclusion that the content of this principle is not adequate, and sometimes even contradictory to the essence of a commercial company. The freedom to shape internal affairs in a capital company is not vested in the shareholders, but in the body of a commercial company, which is the general meeting. As a result, bearing in mind the Constitution of the Republic of Poland, which grants citizens the freedom of association, the principle of freedom of association should be formulated in the law of commercial companies and, based on these provisions, the wording of this principle adapted to the essence of commercial companies should be proposed.

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