Abstract

There is no denying that «freedom of contract» is a main principle of contract law. All European legal systems recognize this principle, as well as European contract law. Among the several distinct freedoms involved in the «freedom of contract», this essay explores the freedom to choose the contents of the contract, that currently raises the most complex questions. In the traditional perspective, freedom to choose the contents of the contract means that it is up to the parties, not to the judge, to evaluate the exchange and the merit of the bargain. This essay shows that in the framework of European contract law and on the basis of some national provisions, such as § 138 BGB, art. 21 of the Swiss Law of Obligations or the new provision of art. 1143 Code civil, the issue should be reconsidered.