Volume 19 (2011) / Issue 6
Abstract: Most of the fundamental positions taken by the draft, as far as they relate to non-negotiated terms, deserve a positive assessment. In particular, one should endorse that the draft, to a large extent, follows the same tendencies that were already incorporated in the Acquis-Principles and the DCFR. This primarily relates to three aspects: Firstly, the draft includes rules addressing the issue of consent to an incorporation of non-negotiated terms into a contract. Secondly, a substantive control is exercised with regard to b2b-contracts. Yet, thirdly, this standard is adapted to the needs of the commercial sector and based on Art. 3 of the Late Payment Directive. With regard to b2c-contracts, substantive control should remain limited to non-negotiated terms. Based on this solution, it would be preferable if Chapter 8 was headed 'Non-negotiated Terms'. As far as contracts other than b2b and b2c are concerned, their exclusion is mirrored by the provisions on unfairness. However, the core challenge for all areas of application is making the draft's open standard of control operative, which - seen against the background of the Optional Instrument as a whole - is a difficult but not an impossible undertaking. One should also welcome that the draft includes lists of unfair terms, also because they are helpful for establishing the content and meaning of the general unfairness standard. With regard to the ('grey') list of presumably unfair clauses, there are reservations relating to the concept of legal presumptions because it intermingles legal with factual aspects. Furthermore, a closer analysis of this list demonstrates that it includes two different kinds of provisions, which would better be dealt with separately: On the one hand, there are clauses which are deemed invalid, unless special aspects of a specific case result into a different assessment; on the other hand, there are sub-provisions with open criteria, so that a clause is only invalid if the requirements of this open criterion is met.
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