Анали Правног факултета у Београду

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АНАЛИ ПРАВНОГ ФАКУЛТЕТА

SUMMARY Limits of Freedom of Contracting The principle of freedom of contracting has always been present in the jurisprudence since the ancient times up to now, but its limits were always mobile. Sometimes within very modest frames, it seemed to fade and vanish from the legal system where its traces only are noticeable, while in other times it dominated the legal system in the symbiosis with the idea about supremacy of individual will over law. In the Roman Law the limits of freedom of contracting were established, in a general way, by a strongly felt formalism and concept »boni mores«. Since the evolution in the Roman Law tended to release law from formalism, the concept »boni mores« was more widely applied, especially through the influence of Greek philosophy. However, after the fall of old Rome development of law and jurisprudence stagnated, so that the renewed formalism in this period is reminiscent of the formalism in the original Roman law (so-called fides facta) and the limits of freedom of contracting are firmly established. The period of the second era of European feudalism in the west is characterized, as to the principle of freedom of contracting, by the duality of the lay and canon laws. According to this teaching of the metaphysical order and immortality of soul, the standpoint of canon law was that nothing may be contracted in full validity by individual will if contrary to the spiritual good. It was possible to contract anything prohibited under the lay, and even canon law on a promissory oath. The principle of freedom of contracting is given the broadest possible frames in the teaching of the theory on the autonomy of will resulting from the political liberalism as preached by the 18th century philosophers and by economic liberalism in the 19th century. Individual will, according to this teaching, is placed above law and it is possesing creative force. However, this teaching has never been accepted in legislation, either in its literal or completely consequent sense. Many legislations have only been inspired by this teaching accepting freedom of contracting as the basic principle of contract law, but with indispensable limits. If one considers important codifications of the civil law from the last and curent centuries, these limits are set in a general way or by the notion »public policy« (French Civil Code, Serbian Civil Code of 1844, Swiss Civil Obligation Law), or in the notion of good usage (German and Austrian Civil Codes), or in the notion »rules of social community« (Sowiet, Polish, Hungarian and Chechoslovak Civil Codes). Regardless of the different terms used in the cited codes, the limits of freedom of contracting are always woven of some meta-legal factors, while essentially depending of the philosophical, political or moral determination of a social community. The legal system »resolves«, in the light of these determinations, the conflict between the individual and the social group, individualism and social idea. The limits set by the legal system to the individual will were formerly very firmly set, so that the should not