The concept of freedom of contract is based on the assumption that if the parties regulate their relationship themselves, they do so better and more tailor-made than the legislator would do. This concept is recognized in all modern systems, but infinite autonomy is not possible. Credit / loan agreements where strong creditors and weak borrowers meet in a typical constellation are examples of types of agreements where it would be particularly useful to discuss the need to restrict contractual freedom, not only because of the social sensitivity to the issue of usury and other excessive incidents related to lending. The extreme macroeconomic importance of access to credit also provides an incentive for discussion.
This dissertation analyzes the reasons for restrictions of the parties’ autonomy in the loan agreement as well as the solutions. The second chapter summarizes the history of loans and the idea of freedom of contract, and the following two central chapters deal with the limits of today's positive law. After a comparative study of the German, Swiss and English law in the third chapter, the fourth chapter presents the current Slovenian legislation with its roots in Austro-Hungarian and Yugoslav law. The limitations of autonomy in consumer credit contracts were significantly influenced also by European law. All these sources are addressed to an appropriate extent.
General institutes that restrict freedom of contract and shape the entire contract law are discussed, as well as issues specific to loan agreements. The latter are divided into three groups. The first group comprises the most typical issues: monetary liabilities of the borrower. The second group covers non-monetary obligations, including contractual aspects of a security agreement. The third important independent group of typical loan contract provisions includes the early termination right (of the lender).
Historically, the legal aspect of a loan agreement has been shaped by case law. Other general limitations have been developed by case law from the general principle of equity and some basic principles such as the principle of good faith in continental law. The most characteristic among them are rules concerning standard terms. Borrowers have little say in the content of standard contract terms, which are widely used by banks. It is therefore difficult to say whether such contracts reflect genuine autonomy. The material criteria of their unfairness raise one of the more difficult questions. Answers are sought both in economic criteria and in general social values.
Finally, the present dissertation deals with future forms of lending and their legal limits. Further regulation is inevitable in view of the expected changes in the economic environment and business models, but it will not be able to keep pace with the changes. It is therefore of the utmost importance that the continental courts also create law, whenever necessary, by applying the general rules in a coherent manner.
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