Explanation of Article 32
This article addresses the statement of "freedom of contract," which is one of the most important principles upon which the Civil Transactions System is based. Every person has the freedom to contract as long as they have the capacity to contract, and this freedom includes:
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First: The freedom to conclude a contract or not, as no person can be forced to contract, except by a statutory provision.
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Second: The freedom to choose the other contracting party, as no person can be forced to contract with a specific person, except by a statutory provision.
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Third: The freedom to determine the terms of the contract, as no person can be forced to include certain terms in the contract, except by a statutory provision.
It should be noted that the freedom of contract is not absolute; it is restricted by the limits of public order and public morals. It is not permissible to contract on matters that violate public order or public morals, for example: contracting for the sale of drugs, the sale of unlicensed weapons, gambling, or the sale of human organs, and the like.
The article exempts from this principle "compulsory contracting," which is contracting by virtue of a statutory provision. For example, if the court permits the sale of a minor's property, the guardian is obliged to carry out this sale.
The article also exempts "adhesion contracts," which are contracts where the contracting party does not have the freedom to determine the terms of the contract, but their role is limited to accepting or rejecting the contract terms, such as: insurance contracts, electricity contracts, water contracts, telecommunications contracts, transportation contracts, and others, and their provisions will be detailed in Article (38).
It should be noted that the freedom of contract is a principle that contributes to enhancing economic growth, encourages investment, provides competition, and meets the needs of individuals and companies.
The freedom of contract is considered one of the most important applications of the jurisprudential rule "the original rule in contracts is permissibility."
By "public morals," it is meant a set of ethical values and principles upon which society is based, and they vary from one society to another, and from one time to another, and are determined by statutory texts, customs, and traditions.
The ruling of the article is not affected if the contract is conditional, such as: a mortgage condition, a sale with an option condition, a sale with a trial condition, a sale with a taste condition, a sale with a down payment condition, and the like.
Related To
Article 32
Consent is attained when the mutual intent of two or more parties who have the legal capacity to conclude contracts is expressed by any means indicating such intent.