Towards constitutional referencing of freedom of contracting

Professor Doctor Ali alSediqi

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Abstract

Summmary Freedom of contracting is of significant standing in private law, especially in civil jurisprudence. Jurist Henri Batiffol described it as “constitution of internal law ”. Based on its high significance, it would be better to state the stages through which it has gone, starting from the moment of its spread during the prevalence of the Individualism, for the fact it was necessarily under the influence of the economic and political philosophy common then. Additionally, it is necessary to search for the historical roots and cognitive fundamentals of the freedom of contracting principal that was accompanying the evolvement of civil jurisprudence, then reciting the challenges faced by that principal specifically its regression amid the emergence of the collective values and Socialism as an economic vision, as well as emergence of Public Order with its over-application to the extent that became compromised. Then, the search proceeds to examine the new shape of the principal in question that became in an cautiously balanced position between personal and objective tendencies in terms of contract content, that to say; to declare freedom of contracting principal according to restrictions imposed on it. The final stage stated herein would be the modern juristic and judicial calls that consider such principal much more worthy by attempting to include it constitutionally through various methods, despite the absence of constitution provisions providing for it. This would be discussed by clarifying the positions of constitutional judiciaries in France and U.S. , including Bahrain as well. The present study is hoped to shed a light on the interactive links between freedom of contracting and an economic philosophy prevalent at any period of time. This clarification, thus, is helpful in knowing the legal and constitutional roots as special or specific fundamentals for regulating investment and commercial competition, which revolve around the principal “freedom of contracting”.

Keywords

freedom of contracting principal, constitution, public order, civil law