Research and development in private law

Research and development in private law

The conflict between the principle of freedom of contract and the requirements of public order in private and Government Contracts in French and Iranian law

Document Type : Original Article

Author
Mostafa Harati
Department of Private Law, Faculty of Law, University of Religions and Denominations, Qom, Iran
10.22034/jpl.2025.2070694.1238
Abstract
The principle of freedom of contract has always been considered as a basis for the formation and regulation of contracts in various legal systems. This principle is based on the premise that adult, sane and independent individuals are competent to freely define and manage their contractual relationships without undue interference from the government. However, this freedom is not absolute and is subject to restrictions arising from public order, especially in the context of government contracts where the other party is a public institution or government official. Public order is a fluid but fundamental concept in the legal system that casts a shadow on contracts with the aim of protecting the public interest, the interests of society and preventing possible abuses of freedom of will. In the meantime, government contracts, due to their close connection with the goals of governance, securing the public interest and the desirable management of public affairs, are subject to specific rules that are mainly designed to ensure transparency, justice, healthy competition and preventing corruption; rules that are sometimes in clear conflict with the traditional principle of freedom of contract. This article, with an analytical-comparative approach, examines the conceptual and practical challenges and tensions arising from the conflict between the principle of freedom of contract and the requirements of public order within the framework of government contracts. First, the concept and foundations of each of the two aforementioned principles are explained, especially in the light of the teachings of civil law and public law. Then, by analyzing the nature of government contracts and their special position in the legal order, it explains the manifestations of the conflict between the two principals at the stage of concluding, implementing, and interpreting these contracts. Also, by utilizing the experiences of comparative law, especially French law as a system that clearly distinguishes between private and public contracts, it is shown how legal systems try to establish a balance between freedom of will and public order through tools such as legislative intervention, restrictive interpretation of will, or the presentation of integrated theories such as the theory of contract adjustment.
Keywords
Public order
government contracts
sovereignty of will
public expediency
mandatory rules
Subjects
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