PRINCIPLE OF FREEDOM OF A CONTRACT UNDER THE LEGISLATION OF UKRAINE, FRANCE AND GERMANY: COMPARATIVE AND LEGAL ASPECT

Abstract

The article is devoted to the research of the principle of freedom of contract under the laws of Ukraine, France and Germany. In particular, it is established that the principle of freedom of contract is one of the key expressions of the dispositiveness of civil law and plays an important role in giving participants in civil relations the freedom to determine the conditions of their interaction in a contractual relationship based on free will. It is determined that the provisions of the French Civil Code on the principle of freedom of contract are unique in the context of their wording, because the French legislator, instead of using a literal textual interpretation of the principle detailing the powers of the parties in its implementation, tried to give it much deeper meaning, which is as follows: a) by concluding a civil contract, the parties voluntarily bind themselves to its terms, thus giving the contract the legal force of law; b) obligations mediated by the contract are based solely on the free will of its parties, which manifests the autonomy of will. The studied principle plays a special role in the legal regulation of contractual relations in Germany. This is confirmed by the unprecedented and atypical for the continental system of law endowment of the principle with a sign of constitutionality by virtue of par. 1 of Article 2 of the German Constitution. In view of this, it is paradoxical that the provisions of German civil code, by analogy with the French, do not contain a separate rule specifically devoted to the principle of freedom of contract. It is established that in comparison with the civil laws of France and Germany, civil legislation of Ukraine: 1) guarantees greater freedom of contract, providing the subjects with the opportunity to deviate from acts of legislation and regulate contractual relations at their discretion, thereby effectively placing the contract in the hierarchy of sources of civil legal regulation above the law; 2) maximally details the features of the implementation of the principle of freedom of contract, thereby minimizing the need for its interpretation by the judiciary and, thus, preventing the formation of unequal judicial practice.