Please enable JavaScript.
Coggle requires JavaScript to display documents.
Standard Terms/General Conditions - Coggle Diagram
Standard Terms/General Conditions
How does national law approach the incorporation problem?
German law: A clause in general conditions which is "so unusual that the other party to the contract need not expect to encounter it" is not part of the contract §305c (1) BGB
Particularly for consumer contracts: § 305 (2) BGB
English law: courts require the user of general conditions to take reasonable steps to bring them to the notice of the recipient (the more unusual, the greater the degree of notice given)
"Red hand tule": the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient (Spurling Ltd v Bradshaw 1956)
Application in interfoto Picture library v Stiletto Ltd 1988
When is a term regarded as unfair under national law?
German law: §§ 308 and 309 BGB provide two lists of unfair terms
§ 308 the grey list: terms that are not binding if they contain disproportionate elements. Whether this is the case or not still has to be decided upon by the court in an evaluation of the circumstances of the case
§ 309 the black list: terms that are not considered binding under any circumstances
French law (grey and black lists): Arts. R 212-1 & R 212-2 Consumer Code
Dutch law (grey and black lists): Arts. 6:236 & 6:237 BW
English law: S. 61-76 Consumer Rights Act 2015
What is the scope of Directive 93/13 on unfair terms in consumer contracts?
Offers minimum harmonisation. Member States are allowed to grant consumers a higher level of protection if they deem this fit
Germany and the Netherlands did not have to change much in their national law
France had to adopt a grey list of unfair terms
The UK implemented the directive in the Consumer Rights Act 2015
When is a term regarded as unfair under Directive 93/13 on unfair terms in consumer contracts?
An annex to the directive contains a grey list of 17 clauses which may be regarded as unfair (Art. 3 (3))
What is the consequence of a term being regarded as unfair under Directive 93/13 on unfair terms in consumer contracts?
Art. 7 obliges Member States to ensure the existence of adequate and effective means to prevent the continued use of unfair terms
How are not individually negotiated terms interpreted under Directive 93/13 on unfair terms in consumer contracts?