Contracts and Humanity: How Freedom and Fairness of Contract Can Be Secured in the Digital Age

The beginnings of modern thinking about the function and meaning of contracts for society date back to the sixteenth and seventeenth centuries. For the supporters of capitalism, contracts and private autonomy are primarily an expression of individual freedom, namely the freedom to be able to regulate things between two private parties without the influence and tutelage of the authorities. Others argue that the ideal of two equally opposing contracting parties is in most cases a pure fiction, with the result that contracts and private autonomy were and are primarily an instrument to reinforce inequality and injustice in capitalist society and thus an instrument of bondage. The question of the meaning and function of contracts arises more than ever in the modern digitized world. Globalization and digitization have led to an exponential increase of the number of contracts concluded every day between consumers and/or private businesses. Similarly, the complexity of most contracts increased significantly.

From a legal sociological and legal ethical point of view, all of this calls for a review of the general status of freedom and fairness of contract in modern society. This article is devoted to this question by examining the priniciples of freedom and fairness of contract as traditional link between contracts as legal instrument and humanity, and by asking how these principles and humanity can be promoted and secured in the digital age.