The problem of balancing the principle of freedom of contract and non-discrimination

Abstract

Traditionally, contract law is based on the principle of freedom of contract, which holds that private parties have the autonomy to choose with whom to contract and to determine the terms of the contract. This approach has long reflected the classical understanding of human rights that the state must not interfere with the transactions of private individuals. However, with the development of a modern approach to human rights, the need to ensure individuals’ right to equal opportunities and protection from discrimination arises. In this way, the state’s duty to actively protect individuals from violations arising from the actions of private individuals, including contract formation, arises. The necessity of applying the principle of non-discrimination in contract law arises when, based on the principle of freedom of contract, there is a risk of violating the dignity and rights of other individuals. The paper aims to identify potential conflicts between the principles of freedom of contract and non-discrimination, and to present criteria for balancing the principles and for resolving such conflicts, in order to ensure adequate protection of human rights in contract law. Therefore, the problem examined in the paper directly contributes to the transformation of human rights by analysing and assessing legal mechanisms in Lithuania and their compliance with European Union and international standards.