Volume 20, Issue 3

The balancing of freedom of contract against fundamental values seems to be a classic subject. It is commonly taught in contract law that fundamental principles may constitute a limit on freedom of contract, and justify infringement of the freedom of choice of the contracting party or, above all, of the freedom to determine the content of the contract. There are indeed a number of values that may justify infringement: the protection of the weaker party, but also other more contemporary issues such as environmental protection. It therefore appears that the heart of freedom of contract, the only intangible value that must be constitutionally protected, is the freedom to enter into or not to enter into a contract. In our view, however, the subject should also be taken in the other direction: certain fundamental values must in fact be protected because they are the very conditions under which freedom of contract is possible. In other words, certain limits on freedom of contract serve not only to protect fundamental values but also to protect freedom of contract itself. To forget this could lead to a reversal of that freedom and thus to a collapse of the legal framework necessary for the protection of constitutional values.

The manuscript discusses the evolution and some relevant legal issues pertaining to the legal figure of reverse factoring, focusing, in particular, on the European context. In the first place, while developing a comparative analysis of some important national regulatory settings, the paper aims to investigate how different contract laws, through the combination of general principles and special provisions, attempt to address critical issues and potential abuses connected to the use of reverse factoring schemes, such as, most notably, the coercion of parties into entering such schemes. On the other hand, the elements drawn from the comparative analysis are meant to be framed within the dimension of EU law, in order to reconstruct potential regulatory hypotheses and solutions at the EU level, also in the light of fairness concerns which, in the EU internal market and especially from the side of Small and Medium Enterprises, arise from the widespread use of reverse factoring, mostly revolving around exploitation of small-sized suppliers by powerful buyers.

This article provides an overview of the most relevant cases decided by the Court of Justice of the European Union concerning contract law. The present issue covers the period between the beginning of April 2024 and the end of June 2024. Out of a total of 231 judgments decided in this period, 26 had a contract law dimension.