In the decade between 1975 and 1985, a momentous shift took place in the configuration of contracts, due to several socioeconomic phenomena that, moreover, are closely interconnected: globalization, pan-contractualism, and the mass production of goods and services, which made possible the emergence of the so-called “consumer society,” with all the effects this entails: unilateralization of the market, subject to the law of supply; the use of advertising and aggressive marketing techniques; artificial product diversification; reduced product lifespans; the generalization of financing mechanisms; the use of standard contract terms as the only instrument enabling mass contracting; the acceleration of contractual relations and everything surrounding them; the depersonalization of legal relationships; etc.<\/p>\n
As a reaction to all this, the “principle of consumer protection” emerged\u2014or, as we have been advocating, protection “of the weaker contracting party”\u2014characterized by occupying a position of weakness or inferiority in contractual relationships in which they intervene, very often due to their status as laypersons (mere amateurs within the market), as opposed to the expertise held by businesses (true market professionals). For this reason, commutative contractual justice is no longer achieved spontaneously as an effect of the free play of supply and demand, but requires the intervention of public authorities and regulatory mechanisms.<\/p>\n
The application of such principles to “asymmetric” contracts has introduced momentous changes to the old model, which, within this specific contractual sphere, have undermined the old principle of freedom of contract, pacta sunt servanda, res inter alios acta, and universal patrimonial liability.<\/p>\n
Indeed, it seems evident that a modern conception of contract no longer allows us to speak of a single general theory of contract; rather, it is essential to recognize, at minimum, a bifurcation within it, separating: (i) on one hand, those core principles applicable to contracting between private individuals and, often, between businesses (that is, contracting between “equals”); (ii) and on the other, asymmetric contracting, in which one of the parties bound can be considered the “weaker contracting party,” whether because they are a consumer or user, a small or medium-sized enterprise, or for other permanent or circumstantial reasons. For the first model, the old principles remain in force, subject in any case to the updating and adaptation to reality that has always characterized civil law rules. For the second, very little remains today of those cardinal principles of the general theory of contract, which for 200 years seemed immovable.<\/p>\n
It is therefore necessary to delve deeper into new principles for this renewed general theory of contract.<\/p>\n","protected":false},"template":"","simposio_area":[52],"class_list":["post-10506","simposio","type-simposio","status-publish","hentry","simposio_area-derecho-y-derechos-humanos"],"yoast_head":"\n