Constitutional Values and Freedom of Contract

Abstract The balancing of freedom of contract against fundamental values seems to be a classic subject. It is commonly taught in contract law that fundamental principles may constitute a limit on freedom of contract, and justify infringement of the freedom of choice of the contracting party or, above all, of the freedom to determine the content of the contract. There are indeed a number of values that may justify infringement: the protection of the weaker party, but also other more contemporary issues such as environmental protection. It therefore appears that the heart of freedom of contract, the only intangible value that must be constitutionally protected, is the freedom to enter into or not to enter into a contract. In our view, however, the subject should also be taken in the other direction: certain fundamental values must in fact be protected because they are the very conditions under which freedom of contract is possible. In other words, certain limits on freedom of contract serve not only to protect fundamental values but also to protect freedom of contract itself. To forget this could lead to a reversal of that freedom and thus to a collapse of the legal framework necessary for the protection of constitutional values.