Lost in transition? Freedom of Contract in Poland and the Central European Experience

The present foundations of contract law in Central Europe developed in a compound way, under a constant “center” – “peripheries” tension. In the 20 century most countries in the region followed a similar way of evolution. This originated in the free-market approach with a strongly liberal dimension in the inter-war period, proceeded through radical denial of party autonomy under the post-war socialist regime and was concluded with the revival of the laissez-faire concept in early 1990s. A pivotal element of this development was the concept of freedom of contract, perceived in a symbolic way, as a manifestation of market libertarianism. The paper analyzes the main threads of this development, adopting Polish law as the vantage point. It attempts to draft focal premises of the intellectual history of freedom of contract in Polish law. It draws attention both to specific features of the Polish attitude towards this concept, as well as seeking to identify common denominators for Central European contract law. In doing so, the paper attempts to locate the development of Polish contract law against the backdrop of the “center” – “peripheries” dynamic and to reach a preliminary understanding of the extent to which the Polish concept of freedom of contract bears certain mainstream or particular features.


Introduction: from the center to peripheries
"This is a cultured gentleman from a God-forsaken place" 1 . In this way, mixing irony with a grain of condescending honesty, Sergei Prokofiev referred to Karol Szymanowski, the Polish composer and his contemporary. This fairly innocent joke touches however upon a more fundamental intuition about relations between the center and the "God-forsaken" peripheries. The inherent tension between these two concepts has shadowed the perception of social and economic realities in Central Europe for centuries: 2 they have framed, at various levels, both the collective self-consciousness of societies in the region, as well as the perception of "outsiders". The second half of the 20 th century opened new chapters in this interaction. Most of the Central European countries then went through profound social and market tensions, which unfolded along roughly the same pattern: from inter-war capitalist (or early capitalist) socio-economic structures, through five decades of a communist regime, to the post-socialist transformation followed by accession to the EU and subsequent integration of EU acquis with domestic legal orders.
Contract law was one of the protagonists of these changes. Throughout the 20 th century it was evolving under the pressure of the political and market forces that carved out the CE's internal realities. The concept of autonomy and self-determination of the market was at the very center of this evolution, being either strongly endorsed or fiercely opposed. The main conceptual axis of this evolution was the idea of freedom of contract, which throughout the 20 th century either adhered more closely to the laissezfaire ideal or drifted towards more specific and constrained notions. In this way, freedom of contract encapsulates the destiny of the relationship between market and politics in Central European countries throughout the 20 th century and serves as one of the main indices for more detailed features of contract law in this period.
One of the principal factors that drove changes in this respect was a clear center-peripheries dynamic 3 . Historically, the Central European countries have been suspended constantly between political and intellectual affiliation to Western Europe and seeking their own voice about policy and institutional design in contract law. This foundational tension recurred, in various forms, throughout the entire 20 th century. The proportion between inspiration or direct transplants from "the center" and keeping "peripheral" identity was floating over time. In this paper I do not aspire to exhaust the topic fully, nor to provide the final argument. Instead, I attempt to map the most conspicuous patterns of development that seem to constitute a common denominator for the countries of the region. In doing so, I pay particular attention to Polish contract law, which is specific when set against the background of the entire region for two principal reasons. First, Polandas the only country of the region to do so -enacted its own, quite progressive, codification of contract law in the inter-war period. It provided a different basis for changes that ensued under the communist regime. Second, the Polish post-socialist transformation took a particularly rapid form and was carried out much more radically than in other Central European countries, which entailed substantial consequences for the actual shape of contract law in the recreated free-market economy. At the same time, however, many general tendencies observable in Polish contract law are common to the whole region and, to some extent, can be universalized as the "Central European" experience of contract law evolution.
The paper attempts to delve more deeply into the intellectual history of the concept of freedom of contract in Central Europe and to understand better its compound development under the changing economic and political premises. It seeks the more profound roots of the contemporary perception of contractual freedom along with its peculiar features. In particular, I try to grasp the specificity of the evolution of this concept, and to trace back how the historical specificity of this region could shape the current understanding of this idea.
Prior to making further comments I'd like to make one methodological caveat. Any remarks on the freedom of contract have to face its natural vagueness and complexity, both at the conceptual and the practical ("empirical") level. This pertains especially to all the analyses that attempt to delve into the intellectual premises of this idea. The notion of contractual freedom involves a broad array of foundational questions, related to the notion of contract, understanding of freedom and the conceptual model of contracting parties. Separately, it involves also a question of whether the analysis pertains to freedom of contract as a conceptual construct or rather to its actual shape in the particular realities. In the latter case: if this pertains to the content of rules or rather to the way in which they are shaped in legal and market practice. Answering these questions in a way that would preserve the coherence of the analytical argument is possible only to a limited extent. For these reasons, the picture drafted in this paper remains obviously selective and builds on several assumptions as to the nature and premises of freedom of contract, which will be further discussed below. The unavoidable elusiveness of the matter allows us to reach only partial conclusions on the freedom of contract in its historical evolution. In the best case they may approximate understanding of this phenomenon, but cannot aspire to setting an exhaustive explanatory framework.
With this in mind, the paper begins with an overview of the development of the freedom of contract in 20 th -century Central Europe, from its inter-war affirmation to various stages of denial under the communist regime (point 3). Building upon these foundations, I proceed to deeper insight into the fate of freedom of contract in the post-socialist transformation and, then, attempt to understand what meanings of contractual freedom (re)appeared in that era (points 4-5). Further, the paper discusses selected instances of conspicuous interrelation between the specific Central European shade of contractual freedom (point 5). In particular, I attempt to juxtapose the Polish concept(s) of contractual freedom and the EU law, trying to reverse-engineer the nature of frictions in transposition of European contract policy and rules in the region. 4

Freedom of contract at the crossroads of the legal and economic imaginarium
The foundations of the contemporary contract law in Central European countries developed in a rather meandering way. In the 20 th century most of the countries of the region followed a similar path of evolution. This originated in the inter-war period with a strong laissez-faire market approach, followed by radical denial of party autonomy under the post-war socialist regime and concluded with the revival of classically liberal contract law in the early 1990s. Throughout this development, freedom of contract was perceived in an emblematic way, symbolizing the entire liberal agenda of contract law 5 , a "touchstone to reveal perceptions about individual autonomy and the legitimacy of self-interest." 6 At each of the three historical stages the political and legal narratives about the market were in some way related to contractual freedom, either by setting it aside or by taking a more apologetic stance. 7 In these terms, freedom of contract was understood mostly as a heuristic 8 notion that epitomizes market liberty. 9 As a consequence, it is clearly "ideologically charged" 10 and conveys a particular set of values and policy considerations. The exact content of these underlying elements is, however, partly volatile and may change, depending on the particular political, economic or ideological premises. They may be used both as a rationale for freedom of contract as such, as well as a yardstick to measure the actual degree of contractual freedom that exists in the particular legal system. 11 Although at the technical level freedom of contract is usually understood merely as the possibility for parties to form contracts according to their intention, 12 the deeper nature and rationale of this possibility remains much less clear.
In particular, the notion of contract freedom does not determine whether it encompasses merely formal elements (i.e. the freedom to make contracts unconstrained by any mandatory rule) or also some material (functional) considerations, which assumes the actual possibility of making meaningful market choices. In the optimal setting, these two conceptual components should operate in synergy, supplementing each other. The legal design of institutions that frame and guarantee contractual freedom is usually directly informed by the more profound understanding of individual autonomy and the ultimate goals of contract law. In various settings, however, both substrates can generate certain frictions. This may be especially the case in transitional situations, where a change in the descriptive dimension does not necessarily have to lead to an adjusted understanding of the abstract concept. And conversely, changes in the political premises of contract law are not always followed by attuned understanding of formal institutions of contract law.
The development of freedom of contract in the Central European countries after the fall of communism vividly illustrates this type of conceptual and policy mismatch. I discuss this phenomenon, building on the post-transformation experience of Polish private law, against a broader background of the economic and legal changes in Central European countries. As I further explain below, Polish contract law has been through an especially complex process of development since the inter-war period, working through a few stages in an approach towards freedom of contract: from its vivid acceptance in the classically liberal form in the inter-war codification (quite unique in this region of Europe), through predominant denial at the conceptual level, to its revival in the old form, somewhat obsolete in the reality of 1990s and the subsequent decades.

Setting the scene: the libertarian model of the inter-war era
The end of World War II found Central European countries with a relatively well-developed structure of contract law established in-between the wars. In most of the countries of the region contract law was still rooted in the rules created before the First World War, which prevailed throughout the 1920s and Max Weber Programme Working Papers 1930s. Most notable amongst them was the Austrian Allgemeines Bürgerliches Gesetzbuch (ABGB), the principal source of contract law for most of the Central European states, which had emerged from the dissolved Austro-Hungarian Empire. In the other countries of the region, the principal source of inspiration was the German Bürgerliches Gesetzbuch (BGB) 13 , along with the French Code Civil and the Swiss Obligationenrecht. All of these codes strongly endorsed individual autonomy and equality, rooted in the laissez-faire accounts of 19 th -century scholarship. 14 In this way most of the Central European countries remained in a strong and direct link with the center of European private law thinking throughout the inter-war period. In this way, the early 20 th century set the scene for the centerperipheries dynamic, which underpinned all Central European systems of contract law.
Against this backdrop, Polish contract law developed along less obvious threads. The lands that constituted the newly-independent Polish Republic at the end of World War I were governed by five systems of contract law: German, Austrian, Russian, modified French and Hungarian. This created an obvious plea for unification, which resulted in the Code of Obligations enacted in 1933. 15 It recognized the laissez-faire concept of contract law 16 , counting it amongst its foundational principles. 17 As such, it was directly expressed in Article 55 18 of the Code, according to which parties could "arrange the agreement according to their wish, as long as the content and the aim of [the agreement] do not contradict social order, nor the statute, nor good faith." 19 The Code understood its political dimension in rather minimalistic terms, treating contract law as a general frame for market operation and building it mostly through non-mandatory rules. Most of the market inefficiencies were understood as external to contract law and proper to public rather than private law responses.
In some instances, the Code tried to outbalance it in selected areas with more protective measures 20 and limit thereby the freedom of contract 21 . However, these instruments were rather insular and reflected an understanding of market failuresand the role of contract lawproper to early 20 th -century European scholarship. Elements of a systematically protective treatment can be found mostly in the home rental and labor agreements, introduced in the 1933 Code and in accompanying acts. In both cases regulatory interventions were justified by the particular social significance of these contracts, along with their susceptibility to causing detriment to a renter and an employee as weaker parties. 22 Apart from this, the exceptions to full freedom of contract were made also in provisions on the abuse of market power (similar to the German concept of Ausbeutung) 23 and on standard contract terms (adhesion agreements). 24 The rationale of these rules was, however, rooted in the liberal conviction that contracts should respect a minimal degree of reasonableness and actual freedom of choice, rather than in any systematic protective attitude. 25 The general attitude adopted in the 1933 Code turned out to be surprisingly persistent in Polish contract law. Despite the profound changes of the economic and social contingencies since 1933, the main theoretical foundations remained deeply rooted in the classic laissez-faire concept. The overshadowing inheritance of the inter-war period is reflected not only at the legislative level (many rules of the current Civil Code of 1964 copy almost verbatim provisions of the 1933 Code), but above all in the intellectual fabric of contract law. Especially, in its deeper intellectual background Polish contract law stayed partly immune to the modern developments of legal and economic scholarship. In particular, it missed the growing awareness of inefficiencies in the market (especially the systematic imbalances created by mass consumption, and the social role of private law), as well as the developing awareness of the social role of contract law. In this way, laissez-faire thinking seems still to remain at the core of the Polish collective perception of contract law, as a legacy of the inter-war period.

The symbolic expulsion of contractual freedom
Soon after the end of World War II, the classically liberal framework of contract law had to be confronted with the newly-established communist agenda. 26 The concept of freedom of contract found itself at the very center of the substantial change in private law that followed. 27 At the conceptual level, 20 On the discussion between libertarian and socially-aware attitudes in travaux preparatoires see M. Derek -1948 this process was driven mainly by the Marxist concept of market and state. 28 From this point of view, freedom of contract was condemned as one of the model expressions of bourgeois ideology, providing an explanatory framework for the exercise of social power by the ruling class 29 and the unequal distribution of wealth. 30 In this sense, freedom of contract constituted an institutional promise that any valid contract, regardless of its content, would be enforceable with the use of state-provided coercion.
Contractual liberty was hence perceived as a purely ostensible formula, which in fact opened the way to lack of freedom and to privilege for an elite cluster of contractors. 31 As a result, Marxist legal thought denied autonomy as an underlying principle of contract law and advocated replacing it with state direction. 32 This viewpoint sees the state as the optimal proxy for citizens' interests, 33 being able to aggregate and reconcile them, and thus to achieve a just allocation of resources. 34 Therefore, the actual autonomy of market actors could be achieved only by denying the formal notion of contractual freedom and by replacing it with collective-oriented state steering. 35 .6.2020). 28 See also W. J. Wagner, General Features of Polish Contract Law, in: W.J. Wagner (ed.), Polish Law Throughout the Ages, Stanford 1970, p. 396f. 29 As was explicitly observed in one of the foundational handbooks, for the owner of private tools and means of production, the 1964 Code did not constitute for the private entrepreneur the principle of freedom of contract. (J. Topiński, Prawo gospodarki uspołecznionej w zarysie, Warsaw 1966, p. 286f). This assertion was rooted in the more fundamental assumption that contract law (being an element of the Marxist-based superstructure) should reflect the interest of the ruling class, which in principle excludes decentralized transfer of economically useful assets.  32 Obviously, direct state interventionismin particular substantial limitations to freedom of contract in the form of state planningwas not the exclusive property of the socialist approach to the market. It was also a commonly adopted solution in post-war Western Europe, in many instances with use of the similar regulatory techniques as on the other side of the Iron Curtainsee, e.g. J. Quigley, Socialist Law and the Civil Law Tradition, 37 Am. J. Comp. L. (1989), p. 787f. Both approaches were, however, fundamentally different in terms of the underlying values and concepts. 33 The separation between freedom of contract and individual party interestsassumed at the general levelentailed further consequences in the ex post perspective: "In this view, contract law no longer is supposed to enable parties to advance their interests by way of cleverly negotiated deals but is simply a means of coordinating socially desirable exchange relationships. If after the conclusion of a contract the parties later disagree about its meaning, the court will search not for the intent and expectations of the parties but for that interpretation most in line with overall political and economic goals." (I. Markovits,Justice,p. 196 T. Duracza, Warsaw 1950, p. 7 The transformation of contract law in this period was, however, not entirely upfront. The general evocation of contractual freedom in Article 55 of the 1933 Code was kept formally untouched as late as 1965 (when then new Civil Code of 1964 came into force). 36 Throughout the two post-war decades, the actual meaning of this concept was, however, gradually refuted and watered down. 37 First of all, it was subjected to subversive judicial reinterpretation 38 , which ultimately removed many of its liberal foundations. 39 This process was accompanied by more directed legislative interventions, which incrementally sliced off layers of market liberty. The most intense and far-reaching of them were introduced in the early post-war period, along with the establishment of a centrally-planned economy in Poland (same as in other countries of the region) 40 . In most parts of the market, private entrepreneurship was replaced with a state-owned enterprise, subordinated to a centrally-set economic agenda. In this way, the state eradicated freedom of contract from a robust part of the market 41 , being able to determine [172][173][174]; later the same attitude was taken by A. Wolter in his handbook: Prawo cywilne. Część ogólna, Warsaw 1955, p. 14f, 300-302. Notably, while criticizing freedom of contract in its classic understanding, both authors observe attempts to regulate the market in the capitalist economybut attribute them to the pressure of big entrepreneurs who lobby for legal instruments that fix their dominant position. 36 In the early post-war handbooks to the law of obligations, freedom of contract was evoked as a principle of private law, without any limits (see J.  Czech, and Polish Higher Education, 1945-1956, Chapel Hill-London 2000. Particularly illustrative of this phenomenon is a resolution of the General Assembly of the Polish Supreme Court of 27 November 1948, which declared that all the case law and principles of the pre-war law (including the law of contracts) had no relevance, if they were not compliant with the foundations of the current (i.e. communist) regime. This resolutionas well as a broader conviction about discontinuity between the former and the current contract lawopened a way to re-establish the default/mandatory rules division in postwar law, without direct change of the content of statutory provisions. 39 The contractual freedom was altered also in a subtler way, by changes in legislative framing and interpretation of standards, usually general clauses that referred to "external" values. In particular, the instruments existing in contract law in the prewar period, which typically represented a liberal understanding of contract lawreferring to market values in the relational sensewere replaced with more community-oriented formulas. The latter elements were introduced mostly by a few general and overarching formulas, such as a standard of the "principles of social coexistence" (which replaced the classic concept of "good faith", adopted in the 1933 Code, following the general concepts of European contract law).  Ludowej 1944-1954, Warsaw 1955 A. Meszorer, Plan a prawo cywilne, 7 NP 1951. The central planning was also coupled with price control in consumer and professional transactionson the development of price regulation till 1960s P. Bubieńska, Skutki cywilnoprawne ustalania cen w obrocie socjalistycznym, Warsaw 1965, p. 32-106. 41 Incremental dismantling of freedom of contract resulted also in a significant shift of balance between mandatory and default rules, both through amendments to statutory rules, as well as through judicial reinterpretation of the existing legal framework. All of these changes aimed to broaden the ambit of state steering in contract law, most commonly by replacing Max Weber Programme Working Papers virtually all elements of transfer of assets on a vast part of the market. 42 Multiple parts of the post-war economy were governed either through administrative ordering or by "internal" dealings between various actors in the state's ownership structure. Consequently, the autonomy-based concept of contract was substituted by a legal obligation to make particular contracts (the terms of which were often predetermined by a statute). 43 In this way, under the socialist regime the concept of contract transformed from a tool of exercising one's liberty to an instrument of governance, which remained in a "symbiotic relationship to power" and embedded "preference of policy over principle". 44 As a consequence, agreements in the planned economy had only an outer form 45 of contracts, being in fact an instrument of state steering. 46 The centrally-planned economy in socialist states was hence populated by "contracts-shadows, contracts-adornments, which in fact do not organize anything, do not shape anything", 47 where the conclusion and substantial parts of the agreement were usually mandated by public law. 48 Only on the margins of the state-ruled market was a contract put to its classic use: an instrument of self-organization of the market, able to reveal the preferences of its actors. 49 This pertained mostly to the spheres where central planning was too costly in terms of lack of data or fluidity of a particular matter. 50 Only to a limited extent was the centrally-steered economy supplemented by instruments of classic contract law. They were, however, mostly marginal and limited to purely technical matters (wherever they could enhance smooth functioning of the state-planned mechanism). 51 This default rules with mandatory ones and by further introduction of mandatory rules in the spheres previously not embraced by any regulation. 42 See also I. Markovits, Socialist vs. Bourgeois Rights: An East-West German Comparison, 45 U. Chi. L. Rev. (1978), p. 631 who noticed that under the socialist concept, "contracts are often enforced not because the interest constellation between the parties makes enforcement desirable, but because the state so orders". 43 The idea of planning does not necessarily entail full exclusion of freedom of contract. From the socialist view, freedom of contract was challenged as a "bourgeois" fiction, to be superseded under socialism by the will of society, as manifested in the plan [see also H.J. Berman, Commercial Contracts in Soviet Law, 35 Cal. L. Rev. (1947), p. 210]. In practice, however, freedom of contract in this regard was purely declaratory and mostly deprived of any coherent normative contentcf. C.W. Since the application of the law of value is designed to forward a systematic development of the entire economy, non-fulfillment of contract law relations established between the enterprises is not only a failure to apply the law of value, but also hinders the development of the whole economy." 46 On the peculiar understanding of freedom of contract in this sphere cf. J. Gwiazdomorski, "Najem" lokali jako problem kodyfikacyjny, 11 PiP (1956) 51 "One wonders how tenacious are the old principles of the law of contracts, which, even after total removal of some of their essential elements (especially the freedom to conclude the contract), are still used to help fulfill the economic plans of the socialized economy. As is well-known, the socialized economy cannot work by administrative rules alone." -J. Fedynskyj, amalgamation of contract and public steering never reached the more profound policy layers, which in that period were subordinated directly to the state's supreme control.
Though with the fall of the Stalinist regime and the 1956 thaw 52 the idea of the centralized economy was partly eased, the concept of freedom of contract remained invariably strongly suspect in the doctrinal and policy discussions. This dynamic was incorporated in a debate between the principal private law scholars of that era, hosted by the "Nowe Prawo" ("New Law") journal: did Article 55 of the 1933 Code (that time still in force) preserve any actual role in contract law. 53 Apart from the purely doctrinal arguments, the main threads of the discussion focused on the question of whether the general principle of freedom of contract is compliant with socialist state policy. Notably, though most of the authors agreed that freedom of contract is still relevant to Polish law, they stressed strongly the supremacy of the socialist legal order, which in principle should trump on contractual autonomy. 54 This conclusion is a particularly vivid illustration of the nexus of "the old" and "the new" elements in contract law in the communist era. 55 The profound transformation taking place in this period was still "channeled" by the classic conceptual framework of contract law, which only in part could be replaced by the new structures.
This particular dynamic was concluded with the final expulsion of the explicit declaration of freedom of contract in the 1964 Code. 56 What is particularly illustrative in this shift of paradigms, is that the bulk of the new contract law directly replicated provisions of the 1933 Code 57 . In this way the old structures were set in the context of new policy and values. 58 At the same time, the expulsion of freedom of contract in the 1964 Code should be considered as a mostly symbolic act. It only "stamped" the change of values that has already taken place in Polish law and concluded the evolution that had begun in mid-1940s. 59

Insubstantial freedom: the Machiavellian argument from contract liberty
The rejection of market autonomy and freedom of contract did not mean, however, that socialist contract law abandoned them entirely at the rhetorical level. In some instances, arguments referring to contractual autonomy could enhance, quite ironically, the shift towards a centrally-steered economy. Such instances, though not very frequent, are worth mentioning as the illustration of a particular fate of freedom of contract in the communist era. Quashed and marginalized on the one hand, on the other hand it was used Obligations in Polish law. By W. J. Wagner. Leiden. Sijthoff, 1974. Pp. ix, 287 (Vol. 2 of Polish civil law, D. Lasok, ed.;and Vol. 18 (2) of Law in Eastern Europe) [review], 37 La. L. Rev. (1977). Max Weber Programme Working Papers in a purely instrumental and somewhat deceitful way. This process of skewing contractual freedom added also to the general imbroglio around this concept in the post-war era, which subsequently became the foundational concern for its current role and understanding at the outset of the 21st century.
One of the most illustrative instances of this tendency is provided by two decisions of the Polish Supreme Court of the mid-1950s. Both of them address the question of parties' autonomy in labor relations (at that time still regulated as a part of contract law 60 ). In both decisions the Court was faced with the question of whether the inter-war rules on employee remuneration should be considered as mandatory or should default in the new post-war realities of a centrally-steered economy.
The first of these judgments (25 February 1955 61 ) seems quite plain in its content and rationale. The Supreme Court concluded that "the statutory provisions on employees' remuneration has lost its default character, but it has the character of mandatory rules". This conclusion, apart from its any possible justice-or individual utility-based justification, directly reinforced the state's ability to steer remuneration rates, by excluding parties' freedom to establish their own salary rates.
In the second, earlier, decision (11 March 1953 62 ) the shift between a default and a mandatory rule took a much more particular and unusual shape. The judgment addressed a problem: whether rules on labor contracts, set out in the inter-war period and still in force, and originally construed as mandatory, still maintained this character. The Court answered this question in the negative, establishing that the former mandatory provisions "in the new regime do not need to have the same character". This pertained in particular to situations where the provisions were to be altered by a collective employment agreement (between an employer and all the employees). Hence, surprisingly at first sight, the post-war authoritarian shift in contract law entailed loosening the restraints of mandatory rule by replacing them with a full default.
In the motives of the judgment the Court revealed a part of the rationale behind this decision. It observed that in-between the wars the capitalistic employment market was based on the inherent opposition between employers (enjoying an economically and politically privileged position) and employees and, therefore, needed to be regulated by use of mandatory rules. 63 At the same time, default rules provided mostly a vehicle for freezing the existing inequalities, by allowing employers to exercise their market superiority and concealing it in a form of (ostensibly voluntary and equal) contract. Developing this reasoning, the Court concluded that under the communist regime this situation was reversed: "[i]n the changed social and economic regime, there is no antagonistic opposition between the interests of the employee of the state-owned firm and the interests of the State of all working people, who rule the State through their organs and in their own interest." For this reason, in the socialist economy default rules may thrive as a tool of enhancing a real party's autonomy. Finally, the Court went even further down this path, claiming that the rules setting forth overtime work entitlements were not only optional, but the policy-and value-based specificity of collective agreements excluded entirely the judicial control of equivalence and fairness of its provisions. 63 What is also noteworthy is that the Supreme Court claimed that the mandatory character of the rules in question provided in fact a "veil", covering the actual aim of the stakeholders, who were interested in maintaining the status quo on the labor market, by appeasing employees with an act, which was not enforced in practice. The Court observed that while applying the inter-war provisions, it should be kept in mind that they were "enacted at the time of a capitalist regime, directly after the shock, which in all capitalist countries caused the Great October Revolution." As a result, capital had to issue for "the workers' masses an act, the content of which would acknowledge the antagonistic character of opposition between capital and labor and, consequently, contain provisions of a mandatory character." For this reason, like other bourgeois rules, the provisions in question awarded merely "formal [ostensible] rights to employees".
At the same time, the judgment had, however, a deeper and less evident dimension, whichat a closer lookreveals a rather Machiavellian shade. The main idea presented as a rationale for a judgment camouflages, quite ironically, a completely opposite assumption about the actual role of default rules and contractual freedom in a socialist sense. 65 A shift from a mandatory to an optional requirement allowed for the partial dismantlement of the former system of employee protection, and for the opening of a broader possibility for immediate and unilateral state governance. Beyond a doubt, the consensual character of collective agreements was, in the reality of the 1950s, quite delusional. The state-owned firms werein the reality of a centrally-steered economyagents of the state policy, with almost unlimited bargaining power vis-à-vis employees. 66 As a result, abrogation of the mandatory character of the rules led in fact to depowering employees' rights by opening a broader possibility to shape them unilaterally by the state-owned enterprise. In this way, the judgment clearly subscribed to a general concept of a contract in socialism, which turned out to be "a technique for placing both control and responsibility in the hands of those who manage enterprises". 67 The judgment referred directly to functional and policy arguments, reestablishing thus the default/mandatory division in labor law. 68 This led the Supreme Court to the ultimate conclusion that the socialist labor market no longer needed the mandatory labor rules. Quite the opposite: according to the Court, in the communist regime the problem of unemployment does not exist, therefore the law should not create too far-reaching entitlements for employees, thereby disincentivizing them from effective work. 69 In particular, there is no need to allow them to claim rights for working overtime, which "in many instances may jeopardize the social property" (implicitly: may encourage employers to purposefully extend the overtime work for a higher remuneration). As a consequence, if a collective agreement limits the overtime entitlements, it should prevail over the (formerly) mandatory rules that awarded these entitlements to a broader degree. Finally, the Court went even further and claimed the rules setting forth overtime work entitlements were not only non-mandatory, but the judicial control of equivalence and fairness should be entirely excluded with respect to collective employment agreements. 70 As a result, by abrogating the mandatory character of the remuneration provisions, the Supreme Court allowed the state to directly govern the salary rates on the market. Moreover, in the realities of the lowlycompetitive 1950s economy, state-owned enterprises had almost unlimited de facto bargaining power over employees and could dictate to them almost any remuneration rules. The reference to autonomy and freedom, made by the Supreme Court, seems thus to have been a purposefully dishonest attempt to 65 As the Court observed, in the communist regimeas opposed to capitalismthe problem of unemployment does not exist, therefore the law should not create too far-reaching entitlements for employees, disincentivizing them thereby from effective work. In particular, there is no need to allow them to claim rights for working overtime, which "in many instances may jeopardise social property" (implicitly: to purposefully extend overtime work, earning thereby higher remuneration). As a consequence, if a collective agreement limits the overtime entitlements, it should prevail over the (formerly) mandatory rules that awarded these entitlements to a broader degree. 66 Moreover, as the communist regime did not recognize any direct forms of employees' associations (such as trade unions), any form of deliberative decision making over terms of employment was rather illusory. It was especially so for the Stalinist period of the early 1950s, when the state's control and impact on society was particularly strong and straightforward. 67  conceal the actual policy aim of the judgment. In this way, although the concept of freedom of contract was ostensibly referred to in its classical shape, in fact it was employed as a clearly non-(or even: anti-) freedom option. In this way the periphery took on the disguise of a "centric" concept and transformed it to opposite ends.

The unspoken autonomy
The symbolic removal of freedom of contract in the 1964 Code did not eradicate it completely from the conceptual framework of private law. Throughout the socialist period it still existed in the shadow of the more exposed principles of the "new" socialist contract law. This hidden life of freedom of contract deserves a deeper look. Plausibly, this period of mismatch and pretension is one of the main roots of the "identity crisis" of contract law in the post-socialist era, which will be further discussed below. 71 Being quite radically different in terms of its values, socialist contract law remained relatively conservative in its institutional agenda. 72 All spheres of contracting were highly contingent on the classic structures of private law (such as the concept of consent and the taxonomy of contracts). In its outcome, despite the general denial of contractual freedom, most contract law in the socialist regime was underpinned by the classic concepts of autonomy and self-determination, with freedom of contract as their main tenet. 73 The exact dynamic between the centric and peripheral attitude towards freedom of contract was highly contingent on the path of legal development adopted by particular Central European countries. Some of them kept their legislation rather apart from the liberal agenda. This route was taken most obviously by Czechoslovakia, which adopted in the Civil Code of 1950 a radically socialist reform of private law, quite a far departure from the core elements of the European tradition. 74 In a more liberalized form, this approach was maintained in the Civil Code of 1964, which limited contract autonomy with a robust body of mandatory rules. 75 Even to a more radical extent, this approach was followed by the East German Civil Code of 1975. The code was attempting to embody the ideas of socialist justice to the greatest possible extent and to follow the ideas of a "popular code", understandable to every citizen. In terms of contract law, it was putting a strong emphasis on the material equality of parties and on safeguarding just allocation of resources in society. 76 At the same time it almost entirely neglected freedom of contract as a principle, following its Marxist perception as a part of the bourgeois heritage of socially exploitive contract law. 77 71 Cf. point 6. 72 On the conceptual continuity between private law in Western Europe and the socialist countries see e.g. G. Ajani At the same time, other countries in the region maintained the core formal structures of contract law relatively unaffected. This was, in particular, the case in Hungary (Civil Code of 1959) and Poland (Civil Code of 1964). In the firstquite exceptionally against the backdrop of the other countries of the region - § 200(1) could roughly resemble a humble declaration of contractual freedom. 78 Its wording was directly in line with similar pronouncements in the classically liberal private law codifications: "[t]he parties are free to define the contents of contracts, and they shall be entitled, upon mutual consent, to deviate from the provisions pertaining to contracts if such deviation is not prohibited by legal regulation." 79 The Polish 1964 Code in turn, grounded the bulk of contract law in the pre-war provisions of the 1933 Code, altering only to some extent their underlying political rationale. The mechanics of socialist contract law remained, however, rather liberal in nature. 80 For these reasons, it could be easily adapted to the evolution of a socialist economy, incrementally liberalized 81 from the 1970s, and then could function quite easily in the realities of the post-socialist transformation.
In all of these systems, the final outcome of development under a socialist regime was a hybrid form, which combined the previously existing structures with the newly-developed policy agenda. 82 This led to a peculiar situation, where "the written provisions of the laws were much closer to market circumstances than business reality." 83 Preservation of individual autonomy in these systems was usually not a matter of a value-based choice, but of one that was purely pragmatic. It rested on the assumption that the socialist economy is based predominantly on the same properties as any other economy and, hence, cannot be deprived of the core guiding values. 84 Following on from this premise, socialist contract law could not entirely neglect "the general principle of autonomy of will of the parties and their parity and in consequence, the principle of freedom of contract." 85 81 See also further parts of this paper. 82 The acknowledgement of contract freedom in the socialist economy was observed also by H.J. Berman, Commercial Contracts, p. 210f, who observed that "[i]t is not considered, however, as a natural right, but rather as a right emerging from social conditions. Its source is found in the harmony of social and personal interests under socialism, and in the equality of bargaining power of the contracting parties. Actual freedom of contract, it is said, is thus created by socialism itselfby the absence of unemployment, by confidence in the future, by regulation and integration of the national economy. Moreover, experience has shown that the welfare of the national economy itself requires the granting of initiative and responsibility to the parties." Similarly also A. Wolter, in one of the most prominent post-war handbooks for the general part of civil lawemphasizing the role of party autonomy as the essential premise of the concept of a juridical act (equal to German Rechtsgeschäft)  The first, quite counter-intuitively, pertained to transactions between state-owned entities. 87 Though this sphere of socialist economy was regulated mostly by administrative ordering and mandatory rules, in the parts governed by contract law it was subordinated to the general conceptual framework of contact law (such as liability for non-performance and defects of consent). Private entities still enjoyed a certain level of freedom of contract, even though it was limited by multiple mandatory rules and administrative ordering.
The actual ambit of this insular freedom was changing over time. It was underpinned by various processes, at the crossroads of political, economic and legal fluxes of the communist regime. In Poland this development had two main culminations: the first of them happened in the outcome of the post-Stalinist thaw in 1956, the second was the result of the economic liberalization of the 1970s. 88 In the result of the first change, Polish contract lawstill directly grounded in Marxist conceptsextracted from its body the most evident manifestations of ideological influence. This change was of fundamental importance for contract law. It created the environment 89 for a return to the classic freedom-based agenda, repudiated or marginalized at the era of intense ideological pressure in the 1940s and 1950s. It further allowed contact law to start its way back to its liberal origins and to focus on individual, rather than collective, interests. 90 As was observed at the time, "in societies that earlier in this century were very heavily committed to the planning principle, the relative importance of contract […] appears to have increased." 91 The same dynamics took place at a different pace in all the Central European countries.
Second, a broad sphere of contractual practice remained beyond the scope of direct state steering. It embraced mostly "everyday" contracts concluded between individuals, beyond the commercial context. 92 They were governed by the general rules of contract law, with strong (yet usually implicit) endorsement of individual autonomy. 93 In these spheres freedom of contract was limitedusually for 87 Also in international trade relations with the Western world, for obvious reasons socialist states did not question freedom of contract as a principlesee e.g. J. Rajski, fairness-based reasons 94but never entirely excluded. It was also scarcely recognized in case law. 95 Moreover, even in the spheres subjected to more intense state steering, legal doctrine and case law attempted (purposefully or intuitively) to maintain the classic taxonomies and conceptual framework of contract law to as broad an extent as was possible. 96 Third, contract law in the socialist era had a strong unofficial dimension as well, which manifested itself in various forms of the black-market economy. This phenomenon was common, in various forms and to various extents, for all the socialist countries, where contracts, being "increasingly neglected" in "public economic life", were "gain[ing] in number and significance in the shadow economy" 97 . Since the centrally-steered economy, almost from its outset, was unable to provide citizens with meaningful ways to satisfy their consumption needs, 98 socialist societies almost instantly started developing unofficial channels and forms of contracting. These substituted the official economy to a great extent, providing goods and services that were unavailable (or hardly available) through official ways of distribution. 99 This sphere of contractual dealings encompassed mostly everyday-life dealings 100 and created a peculiar "parallel" contracting domain, dependent on bottom-up social norms and informal ways of enforcement (e.g. through reputation harm). 101 In these terms, the black market constituted another island of autonomy and freedom of contract. Both principles occurred, however, in a rather peculiar shape: as freedom from state steering and freedom to make any contract that would be compliant with the underlying social framework. Hence, contractual freedom functioned in this context in its most radical version: as freedom from any form of regulation 102 , enjoyed by formally independent individuals. 102 Usually this included also a de facto lack of state enforcement in the case of breach. For obvious reasons participants in the unofficial market were inclined to resort to informal ways of enforcement rather than to reveal the conclusion of contract to any public authority, including courts. 103 Such a high degree of autonomy does not imply, obviously, that the black-market economy was efficient and just. Quite the opposite: the radical version of autonomy entailed massive exploitation and injusticesee e.g. I. Markovits, Justice, p. 224-227. Max Weber Programme Working Papers

Fossilization of freedom of contract
The "double life" of contractual freedom, both denied and tolerated in the socialist regime, triggered quite profound consequences for the conceptual agenda of contract law. It led to the development of its very peculiar shape of "freedom of contract »under socialist conditions«" 104 , which combined elements of liberty and compulsion. At the same time, freedom of contract in the socialist realities developed usually without any more profound theoretical or policy agenda, and was not rooted in any coherent intellectual structure. Academic study of the liberal framework of contract law was in that period at least unfashionable and, if carried out at all, usually limited itself to rather trivial and obvious findings. 105 Moreover, a part of the discussion over contractual freedom was focused on the peculiar issues of the socialist economy, in particular on the agreements between the state-owned enterprises in the planned economy. For similar reasons, contract freedom was also not at the center of attention of courts and (apart from a few instances, open to dispute) never developed as a case law doctrine.
Consequently, in the communist era freedom of contract was usually seen through the prism of its inter-war notion. It was the most proximateand the only fully-shapedconcept of contractual liberty available to legal scholarship of the Central European countries in that era. The confinement to this idea made it, however, hardly possible to absorb more modern attitudes towards freedom of contract that developed in Western European scholarship after World War II. It pertained, in particular, to the new ways of perceiving market inequalities and the social role of contract law in areas such as consumer law. These ideas started to proliferate in Central European scholarship relatively late (in the late 1970s and 1980s) 106 and until the 1990s did not find broader recognition in case law and legislation. Consequently, freedom of contract in Poland, along with other Central European states, became fossilized in its prewar understanding, rather obsolete in terms of the actual market and social needs that developed on both sides of the Iron Curtain 107 . While Western European scholarship began to realize that freedom of contract is a field of balancing values 108 , it was more usual in Central European legal thought to portray freedom of contract in terms of a binary distinction between liberty and non-liberty. It rested, in particular, on equalizing the formal and real freedom of contracting parties 109 and denied in general a more differentiated approach towards various types of market actors, along with the need to introduce protective measures. The outcome was that the post-socialist transformation found Central European contract law partially decomposed at the conceptual level, as well as partially petrified in a rather obsolete shape. 110 Hence, after the collapse of the socialist regime contract law in the region was not fully equipped to address the new economic realities. In particular, it was not able to embrace fully new forms of organizing market exchange and to address the specific protective needs arising in the market. These phenomena occurred with various intensity in all the Central European countries, which after the fall of communism revived the early-20 th century concepts of contract autonomy. They dated back to the last known sets of contract rules which endorsed free market ideals, in most of the region this was the ABGB, the source of contract law for most of the post-Austro-Hungarian states until the introduction of socialist codifications (except for Poland, which replaced its contract law part with the 1933 Code). It endorsed a strongly laissez-faire version of contractual liberty, directly rooted in 19 th -century views of market freedom and the role of private law. In this way, at the initial stage of post-socialist transformation freedom of contractalready a bit dissociated after the communist erawas even further entrenched in the obsolete version of economic liberalism. 111

The "big bang" transformation and contract law
The change of political regime in Central Europe in the late 1980s and early 1990s triggered almost immediate alterations in market institutions and in the legal order. The foundational element of this process was the transformation of the economy from the state-steered to the free-market model. In this way, contract law reclaimed its impact on the entire economy, including the spheres where it used to be neglected or marginalized under the socialist regime. 112 Each of the countries in the region had its own dynamic in this regard. In all of them, however, the economic shift was quite instant and abrupt, and it triggered equally abrupt consequences for contract law design.
The case of Poland is especially interesting against this backdrop, both because of the chronology (Poland was the first country in the region to liberalize its economy) and the radical nature of the reform. It also triggered particularly deep outcomes for the intellectual background of contract law. The attempts to liberalize the market substantially were orchestrated in late 1980s by the Communist Party itself, 113 with the hope to invigorate the economy at a time of catastrophic depression. 114 This change set the preliminary grounds for a much more in-depth evolution that ensued shortly after the political shift in 1989. It was founded on the neoliberal economic agenda 115 inspired by the Chicago School model 116 .
The new attitude was introduced in a series of reforms, carried out within approximately 100 days of 1990. They are commonly known as the "Balcerowicz's Plan" (after Leszek Balcerowicz, the first non-communist Ministry of Finance). They overruled central planning, along with most of the other 111 See also L. Vékás,Contract,p. 51. 112 Ibid. 113 In fact, early attempts to loosen the system of central planning and introduce selected elements of a free market economy were taken in the early 1980s, after the temporary prevalence of the anti-communist opposition forces gathered in the "Solidarność" ("Solidarity") movement. These reforms were, however, soon abandoned after the imposition of martial law in Poland in December 1981. 114  hurdles to market autonomy. 117 Such a "big bang" 118 economic shift was intended to create a shock wave 119 to push the market towards self-reform. 120 The result was that "Poland became a textbook example of Friedman's crisis theory: the disorientation of rapid political change combined with the collective fear generated by an economic meltdown to make the promise of a quick and magical curehowever illusory -too seductive to turn down." 121 Similar dynamics were present in other countries of the region as well. In all of them, one of the most immediate outcomes of the fall of communist rule was deep liberalization of the market, inspired by neoliberal ideas, prominent in the Western European thinking of that era. 122 In most of the countries these ideas were introduced hastily, yet usually in a milder or more prolonged way than the Polish "big bang" shift. The only country that opted for a similarly abrupt transformation was East Germany. 123 The reality there, however, was that transformation did not mean establishing a new economic order from scratch, but instead integration with the West German market and institutional system. Problems and frictions that occurred in this regard were, thus, peculiar to this country.
In all these countries, the transformation posed an obvious and immense task for contract law. 124 It had to adapt itself rapidly to the new economic policy 125 and the new attitude towards market-state relations. The switch from central planning to the free market was not of a purely technical nature, but triggered much more profound consequences for the conceptual structure of contract law. It radically altered the general way of perceiving contract, transforming it from a tool of economic coordination, focused on collective welfare, to a way of expressing the idiosyncratic needs of individuals in an autonomous and (in principle) unconstrained way. 126  119 As has been summed-up by one of the main architects of the Polish economic transformation, "shock therapy" should be understood as "a rapid, comprehensive, and far-reaching program of reforms to implement »normal« capitalism." -J.  Market-Economy, in: Debates andControversies in Economic History. A-Sessions. Proceedings. Eleventh International Economic History Congress, Milan, September 1994, Milan 1994, p. 194-204. 123  contract law was, however, substantially unprepared to absorb the new reality. 127 Although the formal toolbox of contract law could persist without more profound variations, its more profound intellectual structuresincluding freedom of contractfaced growing bewilderment. 128 Only over a decade after the fall of communism, did Central Europe experience a substantial codification movement, with new codes enacted in Czechia (2012) and Hungary (2013). 129 This concluded symbolically the post-socialist shift in the region, building directly on the modern concepts of market liberty and incorporating the values and structures of EU law. 130 The new codes were also one of the most vivid tenets for establishing new, independent political communities with a strong national identity. 131 Poland and Slovakia did not develop their new codes, opting tentatively for an evolutionary modification of the existing acts enacted in 1960s. 132

Particularities of post-socialist contract liberty
The 1980s/1990s transition entailed a very particular version of market liberalism in the Central European countries. It was based on a strong affirmation of the laissez-faire approach, which at the same time was perceived in both an obsolete and trivialized way. 133 It was built on selective elements of modern liberalism (mostly the focus on individual autonomy), but overlooked the others. 134 Each of the countries of the region took a partly different approach towards developing a free market economy. 135 127 See also A. Harmathy,Codification,p. 797. The lack of the proper instrumental background in contract law can be also considered as an element of a broader accusation of "premature" transformation of the Polish economy, without preparatory changes of market and proprietary structureon this critique see e.g. (in a polemic way) L. Balcerowicz In all of them, however, this attitude was built on certain simplifications and a rather sketchy understanding of concepts from the liberal toolbox. This translated directly onto the domain of contract law. In the post-transformation era contract libertyin an attempt to come back to its liberal rootswas caught in a somewhat trivialized version, which in fact was an outdated and slightly superficial reiteration of the inter-war laissez-faire attitude. The unsuccessful evolution of contract law after the fall of communismwhich led to its petrification in obsolete formsis the result of two principal reasons. First of all, it was intellectually rooted in the inter-war laissez-faire approach, which (as discussed above 136 ) could not evolve into a more refined form during its "double life" in the socialist era. Second, the post-socialist transformation created a very particular intellectual environment, which entrenched the fossilized version of contractual freedom even further. The switch towards a free-market economy was not merely of an organizational or legal nature. It entailed also a massive shift of the collective imaginarium, 137 which led to symbolic rejection of the reality that existed prior to the transformation. The naïve version of liberalism, endorsed in the post-socialist years, provided a simple and handy antithesis for Marxism, a catchy version of "new" that could instantly replace the "old". 138 The example of Poland seems, again, especially illustrative for this issue. The particularly radical libertarianism that developed in Poland after the shift towards the free market and democracy, was plausibly determined by the rapidity and depth of Polish social and economic reform. In the post-socialist discourse the strong version of the laissez-faire attitude was a "reaction on the collectivist statism of the »real socialism«". 139 In other words, it developed as an "anticommunist allergy" 140 and embodied broad openness towards social and market liberty, as an intuitive counterweight to the radical interventionism of the socialist era. 141 At the same time, quite coincidentally, Central European political and economic transformation happened in a period of global triumphs of neoliberalist theory. It not only provided a very catchy and easily-available conceptual framework for market reform. 142 In the 1980s, and throughout the 1990s, it was virtually the most prevalent and celebrated economic doctrine, and any substantial critique of its premises could sound rather ill-reasoned and futile. 143 The Central European economic reform was hence, in a way, destined to become a laboratory of (neo)liberal ideas, where their soundness could be practically proven. This triggered a further consequence in the form of an almost unconditional belief that private law and private enforcement might provide the optimal solution to the bulk of economic problems that were (ineffectively) governed through state steering under socialism. In this way, once again, Central European countries adopted ideas from the "center" 145 and subsequently filtered them through their own "peripheral" experience. The laissez-faire model that was formed as a juxtaposition of these processes, produced direct and vivid outcomes for the perception of law and its relation towards the state. The early post-transformation period was underpinned by strong enthusiasm for the self-remedying aptitude of the market, and hence, for limiting compulsory legal interventions and paternalism. As was observed a few years after the post-socialist shift, "[a]fter the political change, the mostly liberal governments started with enthusiasm to build up the institutional system of market economy. However, in a few years it became obvious that the market will not automatically solve the economic problems inherited from the socialist era: industrial production declined, unemployment, social problems and thus the dissatisfaction of people rose." 146 The "postcommunist allergy" triggered hence not only an allergy to state activism in market dealings, along the lines of a (neo)liberal agenda (reduced mostly to a strong endorsement of individual autonomy and lack of state interventionism). It also entailed aversion to any more profound involvement of market laws in pursuing social goals. Under the ideals developed in Central Europe in the early post-modern era, law was expected mostly to facilitate economic dealings and reduce their costs. In contract law its role should be hence reduced only to enforcement of agreements 147 and supplementing them through default rules. Any more profound ideas of social welfare and justice through market regulation were instinctively considered as a reminder of the socialist period andas suchmostly neglected.
For these reasons, freedom of contract in the post-socialist era was raised to the role of one of the mightiest principles of the new relation between the market and the law. It was strongly endorsed in private law scholarship and case law, as well as starting to proliferate in the popular consciousness, as a symbolic incarnation of market (and to some extent individual) freedom. 148 Admittedly, the strong validation of freedom of contract also had a direct instrumental value. It was one of the natural prerequisites of privatization of state property, which began shortly after the fall of the communist regime. In these terms, absolutization of freedom of contract had its direct doppelgänger: the "sacralization" of private property, 149 which emerged after the transformation as the second pillar of the libertarian economic order in the Central European states. 150 Over time, the initial "big bang" liberalism was gradually smoothed by states' welfarist policies, 151 sometimes triggered by external economic necessities. 152 Nonetheless, it still maintains a powerful position in the academic and public discourse. 153 In the following sections I attempt to understand the Max Weber Programme Working Papers more precise outcomes of the Central European version of a laissez-faire approach for the concept of contractual freedom in the post-transformation era. 154

Freedom of contractthe new, but the old?
The concept of freedom of contract was at the center of the post-socialist market changes 155 . It provided both the conceptual agenda for adjusting contract law to the new economic realities and a basis for framing new instruments of contract law. 156 Therefore, it came as no surprise that one of the most immediate legislative changes in the transformation process was restoration of an explicit reference to freedom of contract. The process originated in 1988 when Poland restored freedom of business activity as a legal principle 157 (which was subsequently elevated to the constitutional level, as one of the fundamental rights featured in the 1997 Constitution). 158 In the second step, the amendment of 1990 159 reintroduced to Polish private law an explicit declaration of contractual freedom in Article 353 1 of the 1964 Code. The new provision declared admissibility of any agreement, as long as it does not infringe the statute, principles of social coexistence (mostly understood as fairness) or the nature of the particular transaction. 160 Admittedly, this change did not add much to the existing content of freedom of contract 161 and was mostly a symbolic affirmation that tides in contract law shifted to a classically liberal attitude. 162 Notably, Article 353 1 was shaped as a clear (re)incarnation of Article 55 of the 1933 Code. 163 This illustrates vividly that the deeper aim of the post-transformation reform was reversing its post-war development and bringing the concept of freedom of contract to its inter-war form. 164 Along the same lines, contractual freedom was also understood in the scholarship and case law, which referred directly to the inter-war sources, especially to the doctrinal output that accompanied the 1933 Code. 165 In this way, the initial fossilization of contractual liberty (see point 4.1.) was further extended and entrenched. The rapidity and depth of market transformation significantly impeded the possibility out of working out a more coherent and modern agenda. The new market and social issues required a prompt legal reaction, which did not leave much space for deliberation and the careful devising of new tools. The old framework of concepts, notwithstanding its obsolescence, was hence the only one handy and ready for instant use.
Also in this regard Polish contract law was not unique, nor exceptional against the backdrop of the other Central European countries. In all of them, withdrawal from the centrally-planned economy triggered a steep turn towards classical concept of contractual autonomy in its radical form. 166 This was, in part, a result of a sudden and expedient nature of the reform, which did not leave much space for indepth legal and economic consideration. 167 The mismatch between the market and its institutional framework turned out particularly detrimental for the development well-functioning modern private law. The removal of hurdles to the free market opened a way for the uncontrolled and spontaneous growth of private entrepreneurship, which from the very beginning experienced a high level of economic inequality 168 and unfair market practices. 169 Contract law turned out, to a great extent, to be defenseless towards these tendencies. It lacked not only particular instruments (e.g. a developed system of consumer protection), but also a deeper conceptual agenda, which would allow for the legitimized intervention in contractual dealings. 170 Moreover, the 167 For instance, on the rapidity of the reform of Czech contract law after 1990 see L. Tichý,Czech and European,p. 30f. 168 The outcome of this process was not a growth of oligarchy and burst of inequalityas opposed to some other countries, which adopted the Polish pattern of transformation. The most feasible explanation of this difference rests mostly on political and social premises. Polish transformation was directly supervised by the government, which from the outset was following quite a clear view of development and did not experience too strong subversive tendencies (the possible destabilizing social fractions were not strong enough in terms of political or economic power). See also N. Klein,The shock,who observes inter alia that in the outcome of introducing liberalism in Russia, "the Communist state was simply replaced with a corporatist one: the beneficiaries of the boom were confined to a small club of Russians, many of them former Communist Party apparatchiks, and a handful of Western mutual fund managers". 169 Noteworthily, the change in question was conducted quite contrary to the majoritarian view of society, embedded in the close political background of the first non-communist government -the massive "Solidarity" (Solidarność) social movement (the main opponent to the communist regime throughout the 1980s). The political agenda of this fraction was developed mostly "from inside out" Marxist thought, being strongly focused on equality, employee protection and fair allocation of assets in societycf. N. Klein, The shock, p. 171-184;D. Ost, The Defeat of Solidarity: Anger and Politics in Postcommunist Europe, Ithaca 2006. 170 In more overall terms on the intellectual weakness of the CE countries in the transformation era also D. Bohle, Neoliberal hegemony, transnational capital and the terms of the EU's eastward expansion, 30 Cap. Cl. (2006), p. 78f, who in the context of (Central) and Eastern European countries observes "specific legacies, which resulted in their incorporation into the transnational historical bloc through passive revolution. In contrast to others'-western, northern and southern European countries-their 'return to Europe' could not be based on established societal groups and around a specific hegemonic project at the national level. Lacking a domestic bourgeoisie, weakly embedded intellectuals and state elites became responsible for the rapprochement with the EU […]".
"fossilized" laissez-faire attitude advocated for an opposite solution: lack of intervention 171 or removing regulatory instruments to the ambit of antitrust and unfair competition law. 172 The revival of contract law as a market regulatory edifice was paired in Central European countries with an opposite phenomenon: the increasingly shrinking role of contract rules by the market itself. 173 In many parts of the economy (such as large-scale commerce or investment contracts), legal rules were progressively replaced with self-regulatory schemes. 174 This pertained especially to a broad use of standard terms enacted and enforced by international companies, which managed to effectively exclude (de iure or de facto) application of contract rules and the control of state authorities 175 .
The fossilization at the level of concepts and values was accompanied by methodological conservatism. In the entire region, the post-socialist period was dominated by a textual-centric interpretation, 176 which was minimizing or neglecting more functional or dynamic approaches. 177 The roots of this attitude may be traced back to the socialist era. 178 However, even after the change of political realities it persisted as one of the most prominent features of Central European legal culture. 179 Needless to say that formalist reasoning creates a strong hurdle to any change in contract law, especially if it were to take place in a bottom-up way, without a wholesale alteration of the existing rules (which was the case of Polish private law after the transformation). In the period of transition these particularities of legal methodology created significant frictions in adjusting the existing contract law agenda to the posttransformational reality. In the course of time, the pressure of diverse forces (international markets, state regulation and the growing maturity of the domestic economy) smoothed the radical color of the early transformation. The major role in this process was played by EU private law, which introduced a new view of contract law, quite diverse from the "fossilized" and somewhat simplified concept that was established in the postsocialist era. 180 Nevertheless, as will be further explained below, 181 the EU rules were never fully integrated with the conceptual agenda of domestic contract law, 182 but, rather, functioned next to it, with a partly separate set of rules, values and policy goals. In this way the libertarian concept of freedom of contract -once set at the specific moment of the "shock" transformationbecame surprisingly persistent as an element of the collective imagination, occupying both a theoretical agenda, as well as judicial and political assertions. 183 6. The persistence of the laissez-faire concept of contract law

The symbolic power of freedom of contract
Freedom of contract in its classically liberal understanding, reborn (in fact: excavated) during the postsocialist transformation, played quite a significant role in the public debate in Poland. Its position has reached far beyond the purely legal dimension. Often freedom of contract was referred to as a quintessence of the liberal concept of the market. 184 In other words, it became one of the clear signposts of the post-socialist turn in the economy. 185 Moreover, it started to serve as a catch-all dogma of the state economic order.
Even over two decades after the transformation, L. Balcerowicz described the essence of market freedom through reference to freedom of contract: 186 "[t]he principle of freedom of contract constitutes a basis for freedom in certainly the most important sphere of the people's conductin interactions. Therefore, the legal erosion of this principle, which took place within the past one hundred years, is thus the erosion of freedom." Following on this observation, he claims that the deterioration also takes place nowadays, in particular by "the actual quashing of the freedom of contract between contractors on the market." Further, looking for the values that underlie this approach, the author accentuates that this unwanted occurrence is not proper for socialist countries (that are, by nature, anti-liberal), but to the "capitalist" states, where "[t]he main ideological basis of the aforesaid erosion is an assumption that in certain kinds of transactions one of the parties is inherently weaker than the other and hence, that the law should protect this party by limiting freedom of contract. This legal paternalism, associated with the expansion of the concept of coercion, is perhaps the most visible in the case of labor contracts, i.e. in the labor law." This brought the author to a conclusion that "[i]n this case the concept of a weak party reflects clearly the influence of Marxism." 187 Such a vivid apology for market liberty understood in a laissez-faire sense, leads to a very particular picture of freedom of contract, quite characteristic for the imaginary shape of this concept in the posttransitional Polish discourse. It tends to perceive freedom of contract not only as an embodiment of the liberal market idea, but also as a symbolic plea for a minimalism of state intervention. In this understanding, freedom of contract, to recall the Isiah Berlin's celebrated distinction, is usually referred to as a freedom "from" state regulation, rather than a freedom "to" efficient and just contracts. Notably, the regulatory intervention is perceived in these terms not as a limitation of freedom of contract, but as a contradiction of its essence (the present-day incarnation of Marxism). 188 This view provides a particularly conspicuous instance of a broad and powerful trend in perceiving freedom of contract in the post-transformational legal and policy discourse in Poland. Its outcomes turn out sometimes to be surprisingly conspicuous. One of the most illustrative amongst them is a reception of the Recommendation "S" of the Polish Financial Supervisory Authority (Komisja Nadzoru Finansowego). The document, published in 2006, was intended to frame the market of consumer credit when in a foreign currency (usually in Swiss francs), by mandating banks to disclose to consumers detailed information concerning risks and to ensure that the choice between domestic-and foreigncurrency credit was made in full consciousness. The Recommendation triggered massive criticism from financial experts and politicians, who emphasized that it jeopardizes market liberty and the freedom of individuals to make economic decisions (even if rash or ill-considered). 189 Along these lines, the attempts to shape consumer credit practice were portrayed as an assault on the essence of market freedom.
The discussion over Recommendation "S" proved vividly the power of freedom of contract as an argument in public discourse. What is also noteworthy in these narratives is that contract freedom was seen in an abstract way, as an archetype, and not as a description of the actual degree of market autonomy. At the same time, the fate of the "S" Recommendation adds further evidence to the phenomenon of fossilized contractual freedom in its early-20 th century shape. Despite the lapse of time and accumulated experience of market deficits, the old-fashioned perception of contract freedom seems still to remain the dominant signpost in the economic narratives. It is, however, equally interesting to see, how the fossilized idea of contract liberty functions in more particular legal contexts.

Consumer law without consumer awareness
The particularly lively element of this landscape was consumer protection. Its relevance for the problem of contract freedom became particularly clear in confrontation with the EU consumer law, introduced in Poland in 2000. 190 The concept of consumer protection was, as such, neither new nor unprecedented in the Polish legal order. In the socialist era, Poland started to develop incrementally consumer protection, initially (along with the entire sphere of commercial contracts) 191 based on public steering through legislation and quasi-legislative administrative acts. 192 Polish case law and legal scholarship in the 1970s and 1980s in some instances acknowledged that the classic contract law framework contains pro-consumer components (such as limited duties to inform or warranty periods), 193 which can be derived from it through interpretation and application on a caseby-case basis 194 . Amongst other issues, courts paid significant attention to proper disclosure of the facts relevant for the contract, deriving them e.g. from the general principle of loyalty in contracting. 195 At the same time, as in the other Central European countries, the fall of the communist regime was also fueled by consumer dissatisfaction with the deteriorating living standards and the inefficiency of the centrally-steered supply of commodities. 196 In the post-transition period, the idea of consumer protection in contract law was confronted with the laissez-faire understanding of freedom of contract. The intensity of this conflict became even stronger because of the rapid adoption of EU consumer law in the Central European counties. All of them signed partnership agreements with the EU in the 1990s and started subsequently a "wholesale" adoption of the existing consumer acquis. In this way a vast body of protective consumer rules was faced with domestic contract law, which, in the whole region, remained in its adolescent period and sought its identity vis-à-vis the heritage of the communist era. 197 The encounter of these forces resembled more of a mêlée than a harmonious adjustment: "[f[itting the more interventionist consumer protection acquis into the fabric of private law slowed down the process of private law consolidation and was in conflict with the legal policy goal of strengthening the position of private autonomy. In this way harmonization proved indeed to be »at war with codification and liberalization«." 198 These assumptions had clear ramifications for the concept of consumer protection by means of contract law. From this viewpoint, business constitutes a pivotal substrate of the market economy, which needs a broad margin of liberty and freedom from public intervention. Following this view, contract law should guarantee, above all, freedom of contractors. Hence, any sort of state intervention that favors one of the parties remains, from this perspective, at least suspicious, and usually unwanted. As a consequence, as was observed in the mid-1990s, "[w]e can see a complete lack of sensitivity of the courts to the problems of consumers. The breaches of their rights are believed to be one of the unavoidable costs of the economic transformation, as was the case a few years earlier when their interests were not protected in order not to harm state enterprises." 199 From the consumer perspective, this approach rested on a formal idea of equality and autonomy, assuming that consumers should bear both risks and profits arising from voluntary engagement in market activity. This approachendorsing the volenti non fit iniuria principledid not ignore market failures entirely. It disregarded, however, their impact on market mechanisms and built on a strong reliance that the economy would be able to self-remedy these inefficiencies. This equation between "free market" and "flawless market" serves as an additional argument against interventionism in contract law and in favor of the laissez-faire dogma.
The structure of values and policy goals that resulted from the post-socialist change framed the playground for the subsequent turn in Polish consumer law that was brought about by implementation of EU rules on consumer contracts. 200 Problems arising in this sphere did not result, however, merely from the general approach towards market regulation. Transposition of consumer law faced also several pragmatic problems, grounded in a more particular set of deeply ingrained convictions on the essence of contract law and freedom of contract. 195 See judgments of the Supreme Court of Poland: of August 28, 1980 (II CR 237/80) and of November 18, 1983 (I CR 336/83). 196 From this viewpoint, the anticommunist revolutions in the late 1980s and early 1990s, which turned the European political and economic landscape upside down, was in fact the "consumer revolution": an immense unrest of the masses that strived for a higher standard of living against the regime that appeared severely ineffective in fulfilling its promise of universal welfare ( In this sense, the introduction of EU contract law cut corners in the development of the Polish legal order, by introducing "foreign" institutions and a policy rationale that were adopted rather than developed by the Polish law. This compulsory introduction, confronted with a certain obsolescence of the ideas of autonomy and freedom of contract in Polish law, created strong frictions in the absorption of EU consumer law in the domestic system .201 Although at the legislative level Poland, as the other EU Member States, followed the regulatory patterns established at the Union's level, the practical understanding and application of these rules is much less obvious and predictable. The transposition of EU consumer rules was accompanied by a more fundamental phenomenon: separation of consumer law and "general" contract law, in terms of methodology and underlying values. The introduction of EU consumer law changed this picture to a significant extent. The protective attitudes have been, quite inadvertently, "channeled" into consumer law as a newly-established section of the law of contracts. At the same time, the simplified version of laissez-faire ideas started to monopolize the mainstream of contract law thinking, being unable to support a more pro-consumer attitude. As a result, although after adoption of EU consumer contract law Poland obtained quite a welldeveloped system of consumer protection, supported with clear policy foundations, the general vector of the case law took another direction. 202 Somewhat astonishingly, pre-transformation consumer case law was hence, in certain aspects, more attentive to the regulatory needs of the consumer market, without acknowledging consumer law as a subset of the law of contracts. This observable discrepancy seems to result in part from the intellectual heritage of the transformation period and its persistent impact on the concepts of autonomy and freedom of contract. 203 The laissez-faire view on consumer law values highly the independence of individuals from any sort of state coercion and steering in the economic sphere. A deep conviction that one can and should rely only on oneself entailed a deeply embedded approach that individuals ought to be allowed to seek freely self-fulfillment and self-satisfaction of their own needs and that existing market shortcomings will be cured by the market itself. The laissez-faire version of contract freedom, elaborated and venerated as an abstract ideal, was thereby translated onto practice, directing particular choices about the regulatory design of contract law. 204 Even several years after the post-socialist transformation it was nevertheless observable that "there still is a strong belief among Polish lawyers that the invisible hand of the market will resolve any problem and that any market intervention equals a paternalistic approach towards the consumer, which destroys the sacred freedom of contract. If there are any inconveniences experienced on the market, consumers should bear them as they present an unavoidable cost of the free market. Moreover, a free market economy should not tolerate privileges for any particular group of participants on the market, even consumers." 205 The clash of two narratives about the role of consumer law and the frontiers of contractual freedom opened a new chapter in the long-lasting tension between the "centric" and "peripheral" elements in contract law of the Central European countries. What is notable, however, is that the old dynamic occurred hence in a form that was overturned. The post-socialist transformation in Poland was carried out with a clear view of bringing Central European contract law back to the European mainstream. At the same time, the imaginary "center", to which Polish contract law was trying to return (i.e. the laissezfaire contract law), was no longer the actual core of Western European legal thought. Under the influence of socio-economic studies and the EU law it turned visibly towards more welfarist and regulatory attitudes. In this way, through endorsement of the "fossilized" view of contractual liberty, Polish contract law was in fact drifting towards a more peripheral understanding of this concept. At the same time, quite ironically, the attempts to introduce more mainstream ideas (such as intensified consumer protection) were considered by many lawyers in Poland to be "peripheral" and foreign to the laissez-faire essence of contract law.
In the course of time, the particular opposition between consumer protection and the superficial version of market liberalism, endorsed in Polish contract law after transformation, was slowly alleviated. The crucial trigger of this transformation was the 2008 economic crisis, which entailed the collapse of a few, previously thriving, parts of the consumer economy. This pertained, in particular, to consumer credit denominated in foreign currencies (usually the Swiss franc) and other consumer financial services. Before the crisis this sector was clearly underregulated and (as the debate over the "S" Recommendation may vividly portray 206 ) underpinned with strong laissez-faire convictions. At the same time, consumers on financial markets were subjected to various forms of abuse, both in terms of information (especially by not being sufficiently informed, or being misled, about the actual risk) and of the content of the agreements (by frequent use of exploitative terms). 207 Although the perils created by these practices were in many instances quite evident, the state apparatus (especially the market regulatory authorities) remained quite passive towards them, until the outcomes of the crisis became conspicuous. A similar approach was also characteristic of adjudication in individual disputes, where the courts seemed to adopt a hands-off approach towards the inequalities and possible market abuse for quite some time. 208 Also in this respect the dominant narrative referred, directly or implicitly, to liberty of contracts. 209 Under the experience of crisis, this narrative gradually shifted towards stronger appreciation of consumer welfare and market fairness. One of the clear symbols of this change may be the CJEU Dziubak decision. 210 It addressed and effectively tamed Polish case law, which attempted to replace unfair clauses in consumer agreements with terms construed upon the general criterion of fairness. This attitude was clearly underpinned with a laissez-faire version of contract freedom, where the courts should take all the possible steps to protect contracts from being cancelled or altered contrary to the parties' intent. In other words, if one of the clauses turned out to be unfair, the court should seek the solution that would preserve balance and fairness between parties. This reasoning, true to the classic model of contracting, which rests on the assumption of parity of bargaining power, is no longer relevant in the consumer law context, where the parties are considered to stay in systematic imbalance. For these reasons, as well as for the sake of effectiveness of EU consumer law, the CJEU disapproved of fillingin consumer agreements with ad hoc rules created by courts upon the criteria of fairness and market customs. In so doing, it opted implicitly for another concept of the state-contract relation than the classic libertarian view. It built on the assumption of parties' lack of parity and departed from endorsement of a formal perception of contractual liberty.

Conclusions: from peripheries to the center
The Central European concept of contractual freedom, and the history of its development in the 20 th century, seems to provide an instance of a peculiar development of concepts between the center and peripheries. The trivialized version of the liberal argument, which gained prevalence in a large part of the region, overshadowed also the contract law imaginarium.
The problems discussed in this paper provide, first of all, a cautionary tale about the intrinsic risk of inadvertent distortion of the concept of market liberty. The skewed version of contractual freedom, which proliferated in Poland (and to varying degrees in other Central European countries), resulted from a juxtaposition of two principal factors: rapid and profound change of an economic and political agenda confronted with a relatively fragmented and incoherent understanding of contract law (inherited from a very peculiar and vague notion of this principle in the socialist era). In Poland, at the very outset of the post-socialist transition, the laissez-faire concept of contract law was transplanted quite directly into the intellectual background of contract law. At that stage, however, contract law was not fully prepared to grasp intellectually the essence of this change and absorb it. Instead, being confronted with the new phenomena, it turned back to the inter-war understanding of contract liberty, which was the only welldeveloped conceptual framework that survived during the communist era.
The outcome was that the concept of freedom of contract occurred in the early 1990s in a rather simplified version, closer to the inter-war market liberalism (dating back to the 19 th century laissez-faire attitude), rather than to the modern concept of liberal contract law. For these reasons, freedom of contract in Polish law was shaped in quite a hectic and obsolete way, occurring rather in the wrong geopolitical place and in the wrong moment. It missed, in particular, a deeper understanding of market deficits and differentiation between formal and material (functional) contract freedom, understood as the actual possibility to make meaningful market choices.
In this way, the concept of freedom of contract (and more generally: the idea of contractual liberty) developed in Central Europe in constant tension between the "centric" understanding and the "peripheral" idiosyncrasies, instigated by the geopolitical fluctuations in the 20 th century. Traditionally, the countries of the region have been within the intellectual ambit of Western European legal thinking. At the same time, this influence was filtered through the particular political and legal experience of the region, which led to an idiosyncratic version of contract law and its political premise. Since the 1990s, this historical dynamic has been reinvigorated further by EU private law, which became the main vehicle of the center/peripheral dynamic in the region. It introduced a modern version of contract freedom, strongly rooted in the welfarist premise developed after World War II. Thanks to the specific thread of development in the communist era, this conceptual agenda was mostly overlooked in Central Europe. As a result, it had to be incorporated in a wholesale way, without a fully-developed intellectual background in the domestic legal orders. This created substantial frictions and resulted in the particular way of development of the contract law agenda in the region.
At the same time, the EU law added one more dimension to the center-peripheries dynamic, which allowed the peripheral states to voice their peculiar legal experience. The common European legal order is, by nature, more pluralistic and creates channels both for the "downstream" and the "upstream" transfer of legal ideas. The first are the lawmaking processes taking place in the EU institutions, which in a natural way involve a multitude of national viewpoints, and, at least to some extent, aim to create solutions that could fit all the domestic legal systems. In this regard, as has been already observed in the literature, the Central European view on market and contracts can be praised for bringing into the ambit of EU law a higher awareness of enforcement issues and the procedural effectiveness of rules. 211 Further, the tendency to channel consumer protection out of contract law, characteristic in the early transformation period, 212 was finally reflected at the EU level by adopting the idea of a merger between antitrust law and consumer protection. 213 The second meaningful channel of upstream interactions in the EU legal order has been provided by the preliminary questions asked of the ECJ/CJEU by the Central European courts. 214 Many of them arise between two views of contract law when they are confronted: the outdated version of laissez-faire liberalism and the more welfarist-oriented view endorsed by EU law. Apart from the Dziubak case, where this clash was particularly strong, 215 there are other examples of cases where the Central European shade of market liberalism triggered development in CJEU case law. Such "Easternization of EU law" 216 does not always entail substantial change in the institutional design of EU law. In some instances it also reshapes the EU legal order by refining the already existing rules and unlocking their less apparent potential (as was the case for Article 47 of the EU Charter of Fundamental rights 217 ). 218 In any case, however, peripheries may undoubtedly serve as "laboratories of legal innovation" 219 and thereby co-shape the mainstream. 220 EU private law seems to provide particularly open ground for such a reverse dynamic: "[g]iven the scale of the operation and its duration, however, it is more plausible to view enlargement as an inevitably two-way avenue, where part of the experience and insights gained from the process of accession flow back to the Union and transform into new strategies, policies and priorities." 221 The laissez-faire concept of contract law, which developed in the Central European countries, may yet provide a surprisingly prolific ground for revealing new issues and new development prospects for the "centric" ideas and narratives.