I'm sorry, but I'm not a lawyer. But I'm surprised by the notion that there is such a thing as international common law. How is that possible?

Christopher NOCK

'Freedom of Contract' developed as a doctrine during the early-to-middle of the 19th century (and is often attributed to Anson as his 'classical model of contract law') and continues to be the dominant prevailing tenet of common law contract jurisdictions today.

It is based around two central presumptions - contracting parties are free to enter contracts with anyone they wish ('party freedom') and on whatever basis the parties agree between them ('term freedom'). These are often expressed as the parties 'being sovereign'. To this end, it is presumed that parties have 'equality in contract' so that each has the same bargaining strength when entering contracts and that the state should intervene as little as possible into contracts and let the parties decide with whom, and on what terms, they make contracts. To assist the parties to make the best contracts, contract law rules should be as few as possible and simple as can be made effectively.

There is much debate about how much freedom of contract there actually is today. Big businesses often use teams of lawyers to draft standard contracts for general use and these often conflict with the notions of both 'term freedom' and 'equality in contract'; this type of contract is often presented to the other party who either 'takes it or leaves it'. Also, there has been a growing interference by legislators to protect consumers from the worst excesses of commercial bargaining strength. The development of statute to protect consumers from their bargaining weaknesses is often called 'consumer welfarism' and this runs contrary to freedom of contract.

That said, freedom of contract continues to pervade most common law countries as a doctrine which underpins the market economy and commercial transactions. It isn't a set of legal rules, but is instead a 'notion' - something which contract law recognises as essential and which guides decisions on what is permitted and what is not. The rules which govern contractual agreement, for example, are often said to be based on freedom of contract; a party freely makes an offer, on his or her own terms and to whomever they choose, which the recipient must make a free choice to accept in order to form a binding contractual agreement (at least in England and the US). This is just one example of many ways that freedom of contract heavily influences the rules which govern contract law in common law jurisdictions.

Hope that helps.

Chris Baldwin

Recognized International law is mostly based on treaties and agreements that signatories have agreed to be bound by and non-signatories recognize as guidelines to be considered when reviewing their disagreements. Common law as such is rooted in English law which is guided by binding precedent. Civil law is found in other countries where precedent is not binding. I am not aware there is an International "Civil" law? Freedom of Contract is recognized by the courts as the right of equally balanced parties to make their own arrangements how they do business within the realms of the "relevant" laws which may include, international, sovereign and customary laws. Generally the courts will not interfere in the contract unless it can be demonstrated that one party has a much stronger influence as to how the contract is prepared, usually to their advantage.

Freedom of contract can be defined –or so I propose- as the "the power of natural or legal persons to create, modify, regulate or extinguish property relations by means of acts of private autonomy based on the exchange of declared wills, issued personally or by a representative, which lays down rules of conduct whose content and modalities are primarily determined by the contracting parties themselves- .To Contractual mercantile Autonomy or Freedom you can attribute a double nature: objective and subjective. " Prima facie ", it appears as the generating force of the juridical act; what the juridical act makes be born, though precisely in all that he turns out to be fitted to a more wide system: the juridical Order. This way, the private autonomy might be qualified very well as a General Legal Principle; "Source of Law" in Spanish Civil Code. But, if a subjective perspective is adopted, it shows the features of a civil right, and - therefore - its essence consists of a faculty or bundle of powers; a dominion of the will, to the service of a legitimate interest, which awards possibilities of personal action or exercised through an agent or representative, oponibles and enforceable in relationship to other subjects. Such a faculty consists of a possibility of choosing between several alternatives, so that his exercise should not endure any negative -I mean legally negative- consequence, also do not even subject to any legal burden or punishment, though this one is an affirmation that we must understand always as a relative one. The alternatives to the diverse objects of this Freedom, and the legitimate interest, to whose satisfaction institutionally serve the set of powers, that one is quite an interest that is not opposite to the Law, to the Morality or to the public Order. To these notes we must add the additional one, though absolutely essential: this civil right is original, and not derivative; it is not a power that "awards" or "attributes" the objective Law, but it is an area of freedom that the Law "recognizes", since it is a question of something inherent in the nature of the human Being.

If the essence of commercial contractual autonomy refers to what it is "in se", the content, or –better - its object refers to which aspects or at what levels that freedom is manifested; to what does it gives the right to? What acts or behaviors does it permit to you? Well; If the elements of any contract are consent, object, "causa" -let's say "consideration"- and form, and if - furthermore - the Contract, as a legal act or statement of will, is a human act that unfolds in the realm of a reality framed by time and space, and even surrounded by other circumstantial references, it seems logical that - in general - autonomy should extend to each and every aspect of legal business. Commercial contractual freedom is a subjective right consisting of the power to choose each and every one of the elements and aspects of the contract, as an act of private autonomy, as a legal relationship and as a "lex Privata": of its elements [consent, etc.]; its formative "iter", its form, etc. And also the choice of Lay and Jurisdiction whenever contract in an international contract. So, freedom of choice of law and jurisdiction may also be included, in relationship to "international contracts", such as the international sale of goods, inland crossborder carriage, international maritime or air contracts of carriage and/or charterparties, export credits and documentary banking operations, for the payment and guarantee of international trade operations, export credit insurance; also industrial or transforming activities and even the transboundary construction of infrastructures, and thus a long "et caetera". "Prima facie", the "International Contract" is a contract that expresses the will of the parties to constitute international relationships for the exchange of goods and services. In addition, it is the most important legal form of relationship –or form of legal relationship- to order the operations of agents of international trade . In a classical sense, the concept of "International contract" refers to any contract in which the "foreign element" is subject to the rules of conflicts international law. But this classical notion has been overtaken by another one that would identify it as one that "claims a treatment 'sui generis'"; a "contract without law" [without national law], because it creates and governs trade relations of exchange that exceed the borders of a single country... and its national or inner legal system, but with it the issue is not resolved, but moves to establish how the excess occurs; in what way or for what reason, the terms of trade exceed those strictly internal, since multiple criteria can be used: subjective [the establishment, registered office or residence of the parties are located in different States], objectives [because the object of the contract is in another State, or because the price is paid in foreign currencies] or functional: the fact that the contract has "significant links with several States" or has been concluded in a State other than the State of domicile, etc. of at least one of the parties. International contracts can be practically all statutory contracts, as well as atypical and unnamed ones, since ultimately it is not the contractual "type" -statutory or codified type of contract- that determines internationality. Therefore, in international contracts there exists also the freedom of choice the contractual type itself; the kind of contract one wishes to enter in. The "Unidroit Principles on International Contracts" and RegulationCE. No 593/2008 of the European Parliament and of the Council, 17.06.2008 on the law applicable to contractual obligations (Rome I), omitted any definition and even removed any reference to this concept. But, anuway, there is also here private autonomy, with the same content as in other areas of internal contracts, should perhaps give more emphasis to the freedom of arbitration agreements , and of choice of material law and jurisdiction ; that is: to the autonomy conflictual or "of location". Moreover, the private autonomy is also associated to the "foreign element", which constitutes not only an issue or a matter of choice –a matter which may determine the will of the contracting parties - but, above all, an object of choice. Thus, the first manifestation of international freedom of contract consists in the option of choosing the foreign element; of choosing that some of the elements of the contract, or that some of the circumstances surrounding it, as a legal act or transaction, and which may have legal significance, is qualified by the non-internal nature of the element or circumstance. If there is freedom to choose the person with whom you are contracting, that option may be summed up in the choice between contracting with a national... or with a foreigner, and even –in the latter case-, this option may be summed up in choosing between hiring with an alien of "X" nationality, or with another foreigner, this time of "Z" nationality. Also, there is freedom to fix the real and causal elements, selecting ones that involve some foreign factor. Thus, e.g. the exercise of freedom may be manifested in the choice between chartering a national flag vessel... or a foreign flag vessel, and even –in the latter -, this option may be summarised in the choice between chartering a foreign flag vessel of State "X", or purchasing, chartering or leasing a foreign flag vessel of State "Z".

And as to the circumstances that may surround the life cycle of the contract, the exercise of contractual freedom may manifest itself in the choice between concluding the contract in national territory... or in foreign territory, and even –in the latter case-, this option may be summarised in the choice between concluding the contract in territory foreign –- of State "X", or concluding the contract in territory of State "Z". But the most characteristic manifestation is given in the choice of the applicable national law and the competent jurisdiction; the choice between concluding the contract by submitting to one’s own national law... or to a foreign law, and even choose between concluding the contract under the National Law of State "X", or concluding the contract under the National Law of State "Z". It may also be the case that the exercise of contractual freedom is manifested in the choice between concluding the contract by submitting to the jurisdiction of one’s own national courts... or to the jurisdiction of foreign courts, and even –in the latter -, choose between concluding the contract by submitting to the Jurisdiction of the Courts of State "X", or concluding it by submitting to the Jurisdiction of the Courts of State "Z"; possibilities that can be combined, offering a truly variegated image. Typically, policies and forms of the various commercial contracts usually contain submission clauses, thus encompassing the establishment of the applicable substantive or material law ["Choice of Law Clause"], such as the competent State or arbitral jurisdiction ["Forum Selection Clause"], the clauses of which must prevail over any other means of determining the applicable law.

And referring to differences between Common Law and Civil Law, I think it's necessary to remember that -at the present moment- it is possible to affirm that the Civil Law is nothing but the embodiment of a system of scientific concepts formulated around legal institutions, which -taking its first elements from Roman Law and from Middle Ages "Ius Comune"- was embodied in a Codification - French, German, Spanish...- which formulated substantive law, without relying on procedural law, just on the contrary es in the Common Law; where the process precedes substantive law, and remedies precede rights.

José Luis García-Pita

Many thanks for contributing to the discussion!

I'm pleased to have contributed to que discussion on a matter about I've writen a Chapter in a Book on the 150 Anniversary of Spanish "Ley del Notariado"/1861.

For any contract, be it at local or international level to be valid and have the force of law, there must be "ad idem". That is to say, the parties's mind must meet and agree on each and every term and condition.

Any contract that is entered without the free will of either of the parties is nullity ab initio.

Once again thank you for participation to the discussion!

I hereby give some clarifications to the discussion. The Concept of "freedom of Contract" used in The Carriage of Goods originated from the Common Law.

However, being incorporated in The Hague Rules and following Conventions, such as Hague.Visby Rules and Hambourg Rules and adopted as legal basis for solving conflicts in Contracts involving Carriage of Goods, "Freedom of Contract" constitute the fundamental rule for solving contractual conflicts in Carriage of Goods where , for example, the carriage started in Country A and the delivery of goods took place in Country B. In this kind of Contract of International nature "The Concept of Freedom of Contract" will normally be applied in any country.

Similar to "Freedom of Contract" in Common Law is "The French Terms of

LIBERTE CONTRACTUELLE" which means also " Freedom of Contract."

Nevertheless, Civil Law (FRANCE, BELGIUM, ITALIE, etc...) associate to "LIBERTE CONTRACTUELLE" the so called "PRINCIPE DE L´AUTONOMIE DE LA VOLONTE` which allows restrictions to the contract for the interests of public order.

In conclusion, Freedom of Contract as understood in Common Law will often be the principle of solution in conflicts associated with an international contract related to the carriage of goods.

That is why I have used the Concept of Freedom of Contract within the Context of International Commercial Law. There is room for "Harmonization" of rules in International Trade Law!

Joseph Tshilomb JK

International Business

The University of Winchester, UK

I'm writing my undergraduate long essay on section 20 of Nigeria Admiralty Jurisdiction Act 1991 and how it infringes on the freedom to contract I will appreciate any help.

Certainly, it's essential to get an agreement "in idem consensus", but I guess that acording the Law of "Civil Law" countries; countries with codified Law of Contracts, once you have Offer and Acceptance relating to a determined and certain "subject-matter" and -eventually; at least in spanish Law- a "causa" [which is similar to Consideration], it is presumed by the Statutory Law that there was consent; that there was contract, while I have the impression that in Anglo-American law, there is still to be established whether the will to contract was firm, or -On the contrary- if we were still in the course of contractual negotiations on an agreement which was "in statu nascendi".