THE FORMAL LEGAL PRESENCE OF THE PRINCIPLE OF AUTONOMY OF WILL OF THE CONTRACTING PARTIES IN THE FRENCH CIVIL CODE

Abstract

The French Civil Code is the core of French civil law. The Code derives from the spirit of the French
Revolution of 1789, and is the result of the influence of laissez faire spirit. The theory of autonomy of will is
accepted in the French Civil Code, together with the necessary limitations, so that the code contains a series of
provisions that regulate certain aspects of the autonomy of will in different civil legal relations. In contract law, it is
manifested through the principle of the autonomy of will of contracting parties, as one of the basic principles on
which rests the obligation law in general and the contract law in particular, and it consists in the fact that the
participants independently and with free will decide whether they will establish a certain contractual relationship at
all, with whom they will establish it, with what type of contract and with what content and form, and also in the right
to change and terminate that relationship.
Our paper aims to conclude the formal legal presence of the principle of autonomy of will of contracting parties in
French law, respectively, in the French Civil Code. French law was an example of an indirect expression of the
principle of autonomy of will of contracting parties. Initially, the principle is determined in art. 1134 of the Civil
Code: „Agreements lawfully entered into take the place of the law for those who have made them.” The law of
February 16, 2015. allows the government to reform French contract law by decree. The reform was made through
„Ordonnance 2016-131” – legislation that was passed without going through a parliamentary procedure. Through
Ordinance no. 2016-131 of February 10, 2016, the French government amended the French Civil Code regarding
contract law. In Ordonnance, the form of presentation of the principle of autonomy of will is novelty. The general
principle of freedom is determined by explicit statutory language in Art. 1102, paragraph 1 of the Ordonnance,
where it moved to a direct expression of the principle: „ Everyone is free to contract or not to contract, to choose the
person with whom to contract, and to determine the content and form of the contract, within the limits imposed by
legislation.” Immediately after the powers that are given to the participants of contractual relations on the basis of
the principle, the limits beyond which that freedom cannot be extended are established. The second paragraph of
Art. 1102 of the Ordonnance specifies: „Contractual freedom does not allow derogation from rules which are an
expression of public policy” which represents a general limit of the autonomy of will of contracting parties.