2 General remarks

There are several aspects to freedom as an underlying principle in private law. Freedom can be protected by not laying down mandatory rules or other controls and by not imposing unnecessary restrictions of a formal or procedural nature on peoples' legal transactions. It can be promoted by enhancing the capabilities of people to do things. Both aspects are present throughout the DCFR. The first is illustrated by the general approach to party autonomy, particularly but not exclusively in the rules on contracts and contractual obligations. The assumption is that party autonomy should be respected unless there is a good reason to intervene. Often, of course, there is a good reason to intervene — for example, in order to ensure that a party can escape from a contract concluded in the absence of genuine freedom to contract. The assumption is also that formal and procedural hurdles should be kept to a minimum. The second aspect — enhancing capabilities — is also present throughout the DCFR. People are provided with default rules (including default rules for a wide variety of specific contracts) which make it easier and less costly for them to enter into well-regulated legal relationships.

They are provided with efficient and flexible ways of transferring rights and goods, of securing rights to the performance of obligations and of managing their property. The promotion of freedom overlaps with the promotion of efficiency and some of these examples are discussed more fully below under that heading.