UNEXPECTED CIRCUMSTANCES AND CARRIAGE OF GOODS BY SEA - ΑΠΡΟΟΠΤΗ ΜΕΤΑΒΟΛΗ ΣΥΝΘΗΚΩΝ ΚΑΙ ΣΥΜΒΑΣΗ ΘΑΛΑΣΣΙΑΣ ΜΕΤΑΦΟΡΑΣ

PREFACE 1. Preliminary observations In compliance with the fundamental doctrine of “freedom of contract” 1 , the law grants the right to a party to conclude a contract with another contracting party. Based on autonomy and self – determination, the contractual obligation is attributed to the will of the parties. Individuals and legal entities are, therefore, entitled to negotiate and form a contract with another party or not, to elect one or another as a contracting party and shape its context in compliance solely with their interests 2 , if the legal requirements are fulfilled (e.g. statutory restrictions, standard form of contracts (contracts of adhesion), compulsory transaction). Hence, “freedom of contract”, which is defined as the power to decide whether to contract and to establish the terms of the bargain 3 , is a topic of major importance not only in contract law but also in maritime law and particularly in contract of affreightment and in carriage of goods by sea. On the other hand, although the significance of the role of the aforementioned doctrine is indisputable, it is necessary to mention that its exact content is interrelated to the doctrine of “legal certainty” and the “sanctity of contract” (“pacta sunt servanda”). The latter means that since a contract is the agreed legal framework between the parties and has a binding power, the parties must perform it, regardless of the existing circumstances. Thus, even if any change has occurred in the conditions under which the contract was concluded, the contract shall, in any case, be performed in accordance with its terms without even taking into account the sacrifices incurred by the obligor in the performance of his obligation. “Pacta sunt servanda” is the cornerstone of contract law. 1. E.g. Greece: Greek Constitution: art. 5§1, Greek Civil Code: art. 361, Deutschland: Grundgesetz für die Bundesrepublik Deutschland art. 2§1, Denmark: Article 5.1.1 Danske Lov (Old Danish Code of 1683), Spain: Articles 6 and 1255 of the Civil Code, France, Belgium and Luxembourg: Article 6, 1123 and 1134 par. 1 of the Civil Code indirectly, Italy: Article 1322 of the Civil Code, The Netherlands: Article 6:248 BW, Portugal: Article 405 of the Civil Code, Austria: § 859 ABGB. Selective bibliography: Atiyah P. S.: The Rise and Fall of Freedom of Contract (1985), Markesinis B.: The German Law of Contract (2006), p. 43, Hofer S.: Freiheit ohne Grenzen? privatrechtstheoretische Diskussionen im 19. Jahrhundert, (2001), Jus Publicum Vol. 53, p. 313. 2. Papanikolaou P.: Concerning the limits of the protective intervention of the judge in the contract. Towards a general theory of abuse of freedom of contract (1991), p. 54, Stathopoulos M.: General Contract Law (2018), p. 30. 3. Indicatively: Edwards C.: Freedom of Contract and Fundamental Fairness for Individual Parties: The Tug of War Continues 77 UMKC L. Rev. (2009), p. 654, Roscoe P.: The End of Law as Developed in Juristic Thought 11, 30 Harvard Law Review (1917) p. 204, Morris R. Cohen: The Basis of Contract, 46 Harvard Law Review (1933), p. 553, Roscoe P.: Liberty of Contract, 18 YALE L. J. (1909), p. 455.