Contractual freedom in contract law (With special emphasis on the construction contract)

Author:Teuta Beka
Pages:76-84
SUMMARY

A contract is an agreement between two or more persons who intend to establish, change or extinguish a legal-civil relationship. Civil legal relations between the parties to the contractual law are regulated based on the principle of autonomy of the will of the parties. Legal entities by freely manifesting their will regulate a civil legal relationship. Regarding the autonomy of the will, the... (see full summary)

 
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Vo
l.
6
N
o
. 2
J
u
ly
, 2020
A
cademic Journal o
f
Business,
A
dministration, Law and Social Science
s
II
PCCL Publishin
g
, Graz-
A
ustri
a
I
SSN 2410-391
8
A
cces online at www.ii
p
ccl.or
g
7
6
Co
ntr
ac
t
ua
l fr
ee
d
o
m
i
n
co
ntr
ac
t l
aw
Wit
specia
emp
asis on t
e construction contract
T
eu
t
a
B
eka
Abs
tr
ac
t
A
contract is an agreement between two or more persons who intend to establish, change or
e
xtinguish a legal-civil relationship. Civil legal relations between the parties to the contractual
l
aw are regulated based on the principle of autonomy of the will of the parties. Legal entities
b
y freely manifesting their will regulate a civil legal relationship. Regarding the autonomy o
f
t
he will, the legal doctrine does not have a unique position. Voluntary autonomy is explained
m
ore as a philosophical concept. Freedom of contract represents the possibility for the parties
o
f their own free will to re
g
ulate their mutual relations. Restriction of contractual freedom
has been done with imperative norms, with rules of morality and rules of good habits.
R
estriction of contracting freedom is oriented in terms of the possibility of choosing the
c
ontracting party, restriction in terms of content through adhesion contracts and in formal
c
ontracts throu
g
h the form of contract, which includes consent to enter into the contract. Free
r
estriction of the contracting of the party in case of concluding the contract is mostly expressed
i
n the construction contract. The construction contract is a very formal contract and the non-
i
mplementation of the legal provision regarding the form of the contract brings the invalidity
o
f the contract. These contracts in contemporary law are known as standard contracts which
a
re previously dra ed by one of the parties. These contracts are known as “take it or leave it”
a
nd the contracting party is not allowed to change the content but must enter into the contract
as
i
t
is
.
Ke
y
words: contract, contractual freedom, construction contract, autonomy of the will,
s
t
a
nd
a
rd c
o
ntr
a
ct.
I
ntr
oduc
t
io
n
A
contract is an agreement
b
etween two or more
p
ersons w
h
o inten
d
to esta
bl
is
h
,
ch
ange or extinguis
h
a
l
ega
l
-civi
l
re
l
ations
h
i
p
. T
h
e contract carries out t
h
e circu
l
ation
o
f
goods and services at national or international level.
I
n addition to contracts
c
oncluded between individuals, contracts are im
p
ortant where legal entities are
p
resented as a
p
art
y
in order to carr
y
out economic activit
y
. The develo
p
ment o
f
the trade econom
y
would not be
p
ossible i
f
the contractual relationshi
p
s were not
r
e
g
u
l
ate
d
accor
d
in
g
to t
h
e
p
acta sun servant
a
p
rinci
pl
e.
C
ivil legal relations between the
p
arties to the contractual law are regulated based on
the
p
rinci
p
le o
f
autonom
y
o
f
the will o
f
the
p
arties as Jus D
i
s
p
oz
i
t
i
vum. Lega
l
entities
f
reel
y
mani
f
esting their will regulate a civil legal relationshi
p
.
I
n Kosovo, the
p
rinci
p
le
of voluntar
y
autonom
y
is regulated b
y
Article 3 of Law on Obligations, No. 04
/
L-77,
which states: Partici
p
ants in liabilit
y
relations are
f
ree, in accordance with the ordering
p
rovisions, o
f
p
ublic order and good habits, to regulate their relations according to
t
heir will. Partici
p
ants ma
y
regulate their relationshi
p
o
f
obligations di
erentl
y
f
rom
t
hat
p
rovided b
y
this law, unless otherwise
p
rovided b
y
the
p
rovisions o
f
this law or

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