The Erosion of Contractual Freedom in Commercial Contracts. A Belgian Case-Study

This paper examines how fundamental principles of law in commercial law such as party autonomy, freedom of contract and pacta sunt servanda come under distress. After substantiating between a formal and substantive freedom of contract, as well as between a formal and a substantive contractual fairness or balance and explaining the concept of socialization of contract law; the author compares in this text a couple of legislative developments aimed at installing a substantive contractual balance in Business-to-Business (B2B) commercial contracts with the open norm of good faith. It will be shown that both share some similarities, but also have important differences. Next, the paper provides the reader with some examples where the legal practitioner can witness a trend in Belgian commercial (contract) law towards a far-reaching socialization of commercial contract law. Although commercial contract law governs the relationship between businesses entering contracts with other businesses, the mind of our legislator is more and more set to impose rules to protect the weaker business party, such as, for instance, small and medium-sized businesses.