IV.1.1 - Freedom of contract

No. IV.1.1 - Freedom of contract

The parties are free to enter into contracts and to determine their contents (principle of party autonomy).

1 Together with the Principle of sanctity of contracts this Principle of party autonomy constitutes a core pillar of transnational contract law. The parties' freedom relates to both their decision whether and with whom to enter into a contract ("positive" and "negative" party autonomy) and how the contents of that contract should be. It is this later aspect of party autonomy which allows the parties to create - always within the boundaries of boni mores and the Principle on unfair standard terms - their own contractual framework, tailor made to the specificities of their commercial transaction.

2 There may also be mandatory provisions of domestic law, which must be applied irrespective of which law governs the contract ("lois d'application immédiate", "lois de police", "Eingriffsnormen") and which may set limits to the party's freedom to determine the contents of their contractual relationship.

3 The Principle of good faith is not subject to the Principle of freedom of contract, i.e. the parties may not contractually exclude or limit it. Such an agreement would itself be void because it is against boni mores.