S-ar putea spune că domeniul contractului este domeniul libertăţii, domeniul în care persoana îşi manifestă liber şi conştient voinţa, alegerea, opţiunea şi interesul. Cel puţin asta ar spune adepţii neoliberalismului şi promotorii curentului capitalismului de grotă şi al darwinismului economic, care pretind că societatea este o junglă în care cel mai puternic supravieţuieşte.
Nimic mai entuziasmant din punct de vedere filosofic şi nimic mai greșit din punctul de vedere al realităţii economice şi sociale.
Libertatea de voinţă, departe de a fi un principiu sacrosanct, nu este decât o iluzie, o aparenţă înşelătoare sau cel mult o ficţiune juridică.
În realitate, niciodată conţinutul contractului nu a fost construit exclusiv prin acordul de voinţe ale părţilor contractante. Legea a limitat încă de la originile ei efectele contractului, prin interdicţia ca particularii să deroge prin convenţiile lor de la normele ce interesează ordinea publică şi de la bunele moravuri (care impun, spre exemplu, ca profitul să fie licit, iar îmbogăţirea să aibă o justă cauză).
De asemenea, dintotdeauna, au fost cu adevărat liberi să contracteze doar aceia care au deţinut resursele, mijloacele financiare şi poziţionarea socială corespunzătoare, nu şi restul. Cei presaţi de nevoi au fost, sunt şi vor fi mereu obligaţi să vrea ceea ce puternicii economiei au fost, sunt şi vor fi liberi să le-o impună.În prezent, în privinţa unui număr infinit de contracte şi raporturi juridice derivate, nu există o reală libertate de a nu contracta, de vreme ce necesităţile sociale sau economice postmoderne impun contracte de consum, de furnizare de utilităţi, de adeziune la o reţea, la un grup de contracte sau la un organism profesional etc., iar legea obligă la încheierea unor contracte, cum ar fi asigurările obligatorii, accesul cu taxă (rovinietă) la o reţea de transport, achiziţiile publice şi concesiunile etc. Tot astfel, un mare volum de contracte se încheie cu parteneri contractuali de neevitat, dat fiind monopolul sau oligopolul de facto pe care aceşti „parteneri“ îl deţin pe piaţă (situaţie instituită, uneori, chiar prin lege). Spre exemplu, nu există o libertate de alegere a furnizorului de utilităţi, câtă vreme în regiunea geografică dată nu există un alt furnizor (sau deşi, teoretic, acesta poate fi identificat, transferul contractului este, logistic, economic şi tehnic fie imposibil, fie foarte dificil) şi nicicând legea instituie în favoarea instituţiilor de credit sau de asigurări autorizate un monopol, entităţile respective aliniindu-şi comportamentul şi modelele contractuale într-o asemenea modalitate, încât opţiunea devine imposibilă sau foarte dificilă. În consecinţă, nu există opţiunea şi, deci, nu există libertatea de a nu încheia contracte în astfel de situaţii şi nici libertatea de a nu încheia contracte cu asemenea „parteneri“.
De aceea, în doctrina juridică franceză s-a afirmat că, departe de a duce la raporturi juridice echilibrate, autonomia de voinţă are ca rezultat faptul că cei mai puternici îşi impun propria lege în contra celor mai slabi şi adeseori contractul consacră strivirea celui mai slab de către cel puternic.
Pentru adepţii cvasireligioşi ai doctrinei neoliberale, care au ridicat la rang de cult diktatul puterii economice asupra puterii politice (văzută ca reprezentant al societăţii), asemenea afirmaţii pot părea şocante şi pot fi uşor aruncate în derizoriu, prin aplicarea facilă a ştampilei „socialismului“ sau a „luptei de clasă“. Dar aceste afirmaţii reprezintă realitatea economică şi socială indeniabilă.
Este mult mai important, însă, alt atribut al acestor constatări: ele sunt un bun început al mişcării de reclădire a conceptului de contract, pe temeiul liberalismului, o filosofie politică, economică şi juridică opusă nu numai comunismului, ci şi neofeudalismului pe care suntem toţi nevoiţi să îl parcurgem, în prezent, în viteza calculată în nanosecunde a tehnologiei informaţiei şi „cu ajutorul“ pilotului automat, care ne determină judecăţile prescurtate şi deciziile oligo-raţionale.
sursa: cotidianul.ro
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