Contractual freedom in contract law (With special emphasis on the construction contract)
Author | Teuta Beka |
Pages | 76-84 |
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
h
specia
l
emp
h
asis on t
h
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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