freedom of contract

freedom of contract. The doctrine that people have the right to bind themselves legally; a judicial concept that contracts are based on mutual agreement and free choice, and thus should not be hampered by external control such as governmental interference. • This is the principle that people are able to fashion their relations by private agreements, esp. as opposed to the assigned roles of the feudal system. As Maine famously said, “[T]he movement of progressive societies has been a movement from Status to Contract.” Henry Sumner Maine, Ancient Law 165 (1864).

— Also termed liberty of contract; autonomy of the parties. [Cases: Constitutional Law 89. C.J.S. Constitutional Law § 491.]

“Like most shibboleths, that of ‘freedom of contract’ rarely, if ever, received the close examination which its importance deserved, and even today it is by no means easy to say what exactly the nineteenth-century judges meant when they used this phrase. At least it may be said that the idea of freedom of contract embraced two closely connected, but none the less distinct, concepts. In the first place it indicated that contracts were based on mutual agreement, while in the second place it emphasized that the creation of a contract was the result of a free choice unhampered by external control such as government or legislative interference.” P.S. Atiyah, An Introduction to the Law of Contract 5 (3d ed. 1981).

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词条贡献者

译者蒋毅，毕业于亚洲顶尖的高级翻译学院，擅长翻译各种与破产与资产重组相关的法律文件。