The Right of Competition and the Freedom of Contract Cover Image

Pravo konkurencije i sloboda ugovaranja
The Right of Competition and the Freedom of Contract

Author(s): Branko Morait
Subject(s): Law, Constitution, Jurisprudence, Civil Law
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Freedom of contract; Right of competition; Jurisprudence; Abuse of monopolistic position; Acquis communitaire;
Summary/Abstract: In this article we shall focus on the specific restrictions of the autonomy of will which could be met in positive legal regulation of the right of competition and in the jurisprudence which arises through the application of legal norms of the competition law. The role of the case law in the interpretation of the framework of public policy is not unexpectedly emphasized. Theory is not unique when it has to define the notion of the public order for there is a whole range of theoretical definitions of this term. Therefore, one theoretical current agrees with the idea that the specification of the public order should be left to the courts, while the opposite theoretical current looks for clear legal definition, in order to deprive the courts from arbitrariness in the regulation of contractual relations. In the area of contract law, the balance between the freedom of contract and the prohibition of abuse of a monopolistic position in the market is necessary.