General terms and conditions (Incorporation (Specific controls (France…
General terms and conditions
General condition has not become a part of the contract and this gap is filled default rules by the court.
Consumer code L132-1, L212-1
Red hand rule: Reasonable depends on the contents of the terms. The more unusual, the greater degree of notice is required. (Lord Denning’s ‘red hand rule’ –Spurling Ltd v Bradshaw (1956)
BgB §305: "Standard business terms only become a part of a contract if the user when entering into a contract 1) Refers the other party to the contract it them explicitly or where explicit reference due to the way in which the contract is entered into is possible only with disproportionate difficulty by posting a clearly visible notice at the place where the contract is entered into 2) Gives the other party to the contract in an acceptable manner which also takes into reasonable account any physical handicap of the other part to the contract that is discernible to the user the opportunity to take notice of their contents and if the other party to the contract agrees to their applying.
CC 6:233, 6:234
As it is typical for general conditions to be unilaterally drafted by one party, the court can choose to interpret the conditions to the detriment of the drafter (contra proferentem)
An if an exemption clause unfairly benefits the user, it could –under the restrictive function of good faith –be contrary to reasonableness and fairness to invoke the clause.
UCTA S.3(2): "As against that party the other cannot by reference to any contract term a) when himself in breach of contract exclude or restrict any liability of his in respect of the breach or b)claim to entitled 1) to render a contractual performance substially different from that which was reasonably expected of him or 2) In respect of the whole or any part of his contractual obligation to render no performance at all, except in so far as the contract term satisfies the requirement of reasoableness.
BW 6:236 6:237
CC §1171: "In a standard-term contract any clause which creates a significant imbalance between the rights and obligations of the parties is deemed not to exist. The assessment of the significant imbalance does not concern the main purpose of the contract or the appropriateness of the price to the performance."
BgB § 307 (1): "Provision in standard business terms are ineffective if contrary to the requirement of good faith they unreasonably disadvantage the other party to the contract with the user. An unreasonable disadvantage may also arise from the provision not being clear and comprehensive."