THE FUNDAMENT OF THE NOTION OF CONTRACT IN THE ROMANIAN LAW BEFORE AND AFTER THE RETURN TO THE LIBERAL MARKET ECONOMY
THE FUNDAMENT OF THE NOTION OF CONTRACT IN THE ROMANIAN LAW BEFORE AND AFTER THE RETURN TO THE LIBERAL MARKET ECONOMY

Summary/Abstract: 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.

• Details
• Contents