LA "TEORÍA CLÁSICA" DEL CONTRATO Y LA DISCUSIÓN SOBRE SU ADAPTACIÓN JUDICIAL

Abstract

References to contract theories are usual in the discussion about judicial adjustment of contracts. The paper analyzes the arguments about "classical contract theory", reconstructing its thesis and considering critically its adscription to the Civil Code. Although this genealogical critic is relevant, the paper argues that it need to be completed with a critical review of the justification relation between autonomy and a rigid conception of the binding force of contracts, that the classical theory asserts. To that effect, some current theoretical approaches that share a conception of the binding force of contract grounded in the autonomy of the parties but at the same time admit limitations to it, are examined.