Crisis of the principle of the autonomy of contractual will

Abstract

Summary: The aim of this article is to analyze the current status of the principle of free will in Spanish civil contract law. It is based on the hypothesis that, while free will remains a fundamental pillar of contracting, its exercise is now strongly influenced by legal requirements and principles of equity, especially those related to the protection of the weaker party. Using a simple legal dogmatic method based on the examination of current regulations, doctrinal analysis, and relevant jurisprudence, the article addresses traditional limits, such as law, morality, and public order, as well as modern developments that impact contractual freedom: consumer protection, the control of unfair terms, the rebus sic stantibus doctrine, and the peculiarities of banking and electronic contracting. The results show that the classic principle of pacta sunt servanda coexists today with significant restrictions aimed at avoiding contractual imbalances and injustices. The result is confirmation that private autonomy, without losing its structural character, has evolved toward a more limited model, conditioned by the protection of the weaker contractor and the preservation of material contractual balance.