RESTRICTION ОF FREEDOM ОF CONTRACT: UPDATING PRIVATE LAW REGULATION

Abstract

The article is analyzed the principle of freedom of contract and its limitations based on the analysis of national and foreign, in particular European, private law doctrine, current legislation and court practice. It is noted that that the principle of freedom of contract is fundamental to private law relations. As a special manifestation of individual freedom (autonomy), this principle gives individuals the right to regulate their relations at their own discretion, making decisions on entering into contractual relations, determining the contractual counterparty, and forming the content of the contractual obligation. However, in order to overcome contractual disproportions, contractual freedom is limited by the requirements of fairness, good faith, proportionality, reasonableness, as well as by mandatory provisions of applicable law. Such a restriction on the freedom of contract is due to the need to balance private and public interests, interests of counterparties and to achieve equilibrium in private law relations (balance of rights and obligations of their participants). It is concluded that establishing a fair balance of interests of the parties to contractual relations by restricting freedom of contract is aimed at ensuring a perfect contractual environment. However, for the optimal and efficient development of private law relations, it is equally important to expand the boundaries of legal regulation in the direction of their individual ordering, namely, to preserve the right of the parties to change the statutory rules at their own will. This approach will be in line with the current trends in the development of European contract law and will enhance the role of the contract as the main regulator of private law relations.