January 27, 2010

Freedom of contract

In " th New lex mercatoria and the harmonisation of the Laws of  the International Commercial Transactions" Cremades and Plehn explain how contractual freedom is the "cornerstone  of the non national new lex mercatoria".

This freedom is more obviously defended in British law as it may be in the continental one as the "real agreement" being more pragmatic, and objectively seen by the others is probably more protected than the "real will".

The "will" is a more subjective concept to not to define but to perceive i.e. a contract made with no "will" is not a contract if we are sure of the "will" in all cases; but the British trend will be to focus on the fact that the objective "agreement" was made clear whereas the expression of the will may be confuse...

It may seems clear that on an international level this freedom is essential when it is a matter of peer to peer companies or "aware" professionals... the many restriction to it have been made nationally to protect citizens from agreements where the to contractual parts are unequal and individuals will be naturally losing in this game.

A "United Nations Convention on Contracts for the International Sale of Goods" appears in a newly globalized world and has newly been ratified by many countries, convention where this "freedom of contract" is not explicitly mentioned and differs from some well established Anglo-Saxon rules for example the "mail box" principle in the field of the formation of the contract is put aside and the Convention seems to be more in favor of the reception theory. The convention even if a step forward can be not applied by contractants that do not want to aplly it.

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