تقلص مبدأ سلطان الارادة غي ظل تطور الشكلية

Abstract

"This study aimed to analyze the shifting relationship between the principle of the autonomy of the will and the evolution of legal formalism in contract formation within the context of Algerian private civil law. The research established that the principle of the autonomy of the will, long considered the cornerstone of contract theory and a manifestation of absolute contractual freedom, has witnessed a noticeable and relative contraction in its scope of application. This reduction was not arbitrary but resulted from an accumulation of economic, social, and political factors, prompting the legislator to intervene with mandatory rules imposing formalism in many contracts. This intervention was primarily driven by the need to protect the weaker party ,ensure legal and economic stability in vital transactions, and guarantee transparency. The study clarified that this evolution in legislation shifted the original principle from one of absolute consensualism to one of obligatory formalism in significant contracts, such as real estate dispositions, thereby limiting the individual will and subjecting it to the mandatory will of the legislator. The study concluded that the development of legal formalism has profoundly impacted the contraction of the autonomy of the will, transforming it from a dominant principle to one constrained by regulatory and protective necessities. This reflects the Algerian legislator's endeavor to establish a new, more just balance between contractual freedom and the requirements of public order and protective justice, The key findings highlighted that formalism has become a tool for restriction and protection rather than merely a means of proof, and that the contraction of the principle was relative, not an abolition. Consequently, the study recommended the necessity of periodic review of formal legislation to ensure its alignment with socio-economic developments, enhancing legal awareness among contracting parties regarding mandatory formalities, developing protective justice mechanisms to strengthen the judge's role in protecting the weaker party, and conducting in-depth comparative studies to benefit from other countries' legislative experiences in balancing the autonomy of the will and formalism."