The principle of freedom of contract: general characteristics

It has been determined that freedom of contract has become a legally defined universal principle as early as the beginning of the 19th century. Freedom to conclude a contract consists in the possibility of entering into contractual relations on the basis of the internal expression of the will of their potential subject, that is, the party to the contract. The basis of such an expression of will must be the legally intact autonomous will of the party, which consists in its desire for the occurrence of legal consequences that can be achieved by entering into the relevant contractual relations. At the same time, in the structure of the party’s autonomous will, the primary one is the desire to achieve certain legal consequences, and the desire to conclude a specific contract is of a secondary nature, since entering into contractual relations is not carried out for the sake of it as such, but is an instrument for the party to realize its interests. The parties are free to conclude a contract, choose a counterparty and determine the terms of the contract, taking into account the requirements of the law, business customs, the requirements of reasonableness and fairness. The parties themselves choose the type of contract that will regulate their mutual relations. This reveals the dispositive principles of civil law. They can choose a contract that is provided for by law. At the same time, the possibility of concluding a contract that is not directly provided for in the legislation is allowed. However, freedom of contract is not unlimited: it exists within the framework of current regulatory acts, business customs, and the actions of the parties to the contract must be based on the principles of reasonableness, good faith and fairness. An exception to the general principle of freedom of contract are cases when: first, the conclusion of a contract is mandatory; second, the conclusion of a certain type of contract may be prohibited for certain entities, which follows, as a rule, from the nature of the activity formalized by the relevant contracts; third, any of the parties to the contract is deprived of the opportunity to participate in the formation of its terms (on the basis of standard contracts, an accession contract, a preliminary contract, a contract for the benefit of third parties).