From Freedom Of Contract

Powerful Essays
Rotterdam Institute of Private Law
Accepted Paper Series

FROM
FREEDOM
OF
CONTRACT TO FORCING
PARTIES TO AGREEMENT

R.J.P. Kottenhagen•
Published in
From Freedom of Contract to Forcing Parties to Agreement. On the
Consequences of Breaking Off Negotiations in different Legal Systems, 12 Ius Gentium, Journal of the University of Baltimore Center for
International and Comparative Law 2006, 61 – 95



Associate Professor of Law Erasmus University Rotterdam

.

1

FROM FREEDOM OF CONTRACT TO FORCING PARTIES TO AGREEMENT
Address to the Annual Meeting of the European American Consortium for Legal Education in Ghent on 20 may 2005
©2005
R.J.P. Kottenhagen
Associate Professor of Law
Erasmus University Rotterdam

1. Introduction
In the western world, freedom of contract is one of the axioms of contract law. This means that parties are free to enter or not to enter into agreements. In former days agreement was based on a very classic as simple model: an agreement is reached at the moment that an offer is accepted and that is all.
However, times are changing. The classic procedure for entering into agreements does not meet the requirements posed by the market today anymore. The modern contract making process is often a set of very complex agreements and usually involves big amounts of money. The negotiations may last for months or even years. As a result, the parties will reach an agreement by piecemeal. There is not a simple offer and an acceptance anymore, but there are offers, counteroffers, partial agreements etc. etc. and the ultimate agreement is reached only at the end of the discussion. But when exactly the discussion is ended? For this still developing contract formation procedure, in most legal systems there are no special and adequate rules established.
Since it is impossible to qualify in these cases offer and acceptance, a whole set of new problems arises: 1. has the agreement been concluded;
2. when was it concluded;
3. if the agreement is concluded, what are

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