FUNDAMENTAL RIGHTS AND PRIVATE RELATIONS: OVERCOMING THE (PSEUDO)TENSION BETWEEN DIRECT APPLICABILITY AND INDIRECT EFFECTIVENESS BEYOND PATRIMONY

The purpose of this study is to analyze the phenomenon of the constitutionalization of private law and its effects on private autonomy. Understanding the necessary incidence of fundamental rights in private relations, we seek to analyze the various theories about the mode of this incidence (direct applicability, indirect efficacy and state action theory), and their compatibility and eventual diversity of results. Studying the patrimonial and existential legal situations, it is tried to reconcile private autonomy and fundamental rights in a way that prevents the annihilation of private law and its setback, the negligency of fundamental rights. It analyses human dignity, the constitutional foundations of private autonomy, and potential ways of resolving conflict, using proportionality or the characterization of autonomy as a formal principle. One of the basic premises of the work is that private autonomy is essential for the development of social relations, guaranteeing a certain degree of freedom and spontaneity that does not offend the essential core of the fundamental rights and dignity of the human person.