Freedom of contract
The freedom of contract protected in Germany according to the established case law of the Federal Constitutional Court as a result of the general freedom of action by Basic Law is the expression of the principle of private autonomy in German civil law , which allows everyone to conclude contracts that affect both the contractual partner and the Subject matter of the contract can be freely determined, provided that they do not violate mandatory provisions of applicable law, legal prohibitions or morality .
Aspects of freedom of contract
A distinction is made between freedom of contract, freedom of choice, freedom of content, freedom of form and freedom of cancellation as individual aspects of freedom of contract.
- Freedom of conclusion is understood to mean the right to decide "whether, where, when, how and with whom" one wants to conclude a contract or not. If this freedom is restricted by law , one speaks of compulsory conclusion or contracting ( Latin contrahere ; to contract = to conclude a contract). Mandatory contract applies regularly to contracts for services of general interest, e.g. B. For electricity providers: They have to supply the customer or, in the case of public law supply, by means of the connection and use obligation (sewer system, access routes, etc.).
- Freedom of choice means , as part of the freedom to enter into a contract, that you can freely choose your contractual partner. The right not to enter into a contract is also known as negative freedom of contract .
- Under Content liberty (or freedom) is defined as the ability to determine the content of the contractual arrangements freely. In this way, completely new contract types that are not provided for by law can be created ( type freedom ). The freedom of content is restricted by the type constraint , e.g. B. in German property law ( Latin numerus clausus completed number).
- Freedom of form means that you can basically conclude contracts without a certain form or that you choose a form that is not mentioned in the law. Freedom of form does not exist if a legal form is required, e.g. B. in real estate transactions. Here has the form of the function of the warning and can be used for evidentiary purposes and creates legal security (z. B. has the prescribed notary certification of house sales result in a neutral, legally qualified person the procedure attending advisory).
- The freedom of annulment ultimately means that one can withdraw from concluded contracts by mutual agreement. A unilateral solution of the contract is excluded.
The general freedom of contract is restricted in the European Union by a large number of exceptions. Examples:
- Labor law ( protection against dismissal and works councils in Germany)
- Prohibition of discrimination based on ethnicity and origin, sexual orientation, religion, disability, etc. according to the General Equal Treatment Act (AGG)
- Closing hours laws
- through regulations on general terms and conditions
- state monopolies (garbage disposal, judiciary, monetary system)
- Insurance (partial compulsory contract for compulsory insurance )
The French Revolution led to a legal standardization of freedom of contract. With the Décret d'Allarde of March 1791 and the Le Chapelier law of June 14, 1791, freedom of trade and freedom of contract secured and banned organizations and regulations that restricted this freedom of contract.
- BVerfGE 8, 274 - see paragraph margin number 212 there
- BVerfGE 95, 267 - s. there paragraph margin number 142
- Judgment of the Reichsgericht , RGSt 21, 114
- Gerhard Köbler : Legal dictionary. For study and training. 17th edition. Verlag Franz Vahlen, Munich 2018, ISBN 978-3-8006-5881-7 : freedom of conclusion