SOME THOUGHTS FOR A CRITICAL COMPARISON IN CONTRACT LAW

Abstract

The course of the twentieth century is characterized by the growing influence of social justice within private law. The liberal conceptions of the classical legal thought failed to portray the actual transformation from a set of formal notions regarding private autonomy and freedom of contract to the idea that, in different contexts, individuals were not so autonomous and free to contract. In particular, this transformation imposed a limitation to the freedom of contract and its binding force and introduced a series of duties to protect the weaker party and to avert unfairness. Similarly, social justice within the law of property meant the introduction of the social function idea and the consequent elaboration of a series of limits to the classical concept of liability, based on fault in tort law.