Erdélyi Jogélet (Apr 2024)
The Constitutional Context of Freedom of Contract – With a Look at the Basic Conditions for the Legislative Organization of the Civil Development of Private Law
Abstract
A typical example of the achievements of Hungary’s historical constitution is the legal background – referenced in this study – provided by the contemporary Hungarian procedural law, which established the framework for the development of the uncodified Hungarian private law until the end of World War II in the 19th and the 20th centuries. This framework – in particular the role and practice of the Curia – sometimes posed a challenge for Grosschmid, which he did not ignore. For example, in the context of a Full Court Decision, he explained that the Curia is not entitled to set existing laws aside, even if it considers them obsolete. The historical constitution has taken on a new function of interpretation of the Fundamental Law as of 2012, and this makes the Constitutional Court’s decisions relating to Article M of the Fundamental Law and freedom of contract particularly interesting, of which this paper presents those that have perhaps received less attention so far. From these decisions, it can also be concluded that, as freedom of contract follows from Article M and Article XIII(1) of the Fundamental Law, it is not considered a fundamental right, but it enjoys the protection of the Fundamental Law as an independent constitutional right and is a right guaranteed by the Fundamental Law, the violation of which is a ground for a constitutional complaint.
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