Limiting the limits on contractual party autonomy


The freedom of the parties in contract law is a general principle recognized by almost all legal systems. During the last decades, this principle seems to be gaining so much strength as to destabilize another principle equally important – that is, the public protection of rights, being the State responsible, through the courts, for their guarantee.
Only through a comparative analysis (international and national) it will be possible to assess the impact of this phenomenon.
1-In private international law, party autonomy means the freedom of the parties to choose the law applicable and the forum. Is that freedom absolute or is it subject to some limits? And which should be the acceptable limits to the party’s autonomy?
In the International arena there have been adopted new instruments which may involve a new trend in the understanding of the party’s freedom in cross-border transactions. We aim at analysing its impact in Europe and US and the potential applicability of the new international instruments compared to the existing rules.
2-A proliferation exists in Spain of legal mechanisms that allow self-execution of rights by parties in a contractual relationship: sale resolutive condition, rental deposit or purchase option allow all of them for direct execution, seeking to ensure an automatic materialisation of the right.
First, an intertemporal comparison will be conducted, in which the analysis of the Medieval rule of self-protection of rights expresses the lack of a strong political organization: the public absorption of the protection of the rights constitutes the transition towards Modernity, thus evidencing the current return to a stage of weak public powers by the private renunciation to fundamental rights. Second, an interterritorial comparison, being so strong in the US the possibilities for limiting public interference in private autonomy as to clash with one of the pillars of the American constitutional system such as due process.