Certain Problematic Issue of Standard Terms – Freedom of Agreement and its Limits

Vakhtang Zaalishvili

Abstract


Freedom of contract can not be perceived without autonomy in content formation of the agreement; Though, it is evident also, that the freedom at stake relates to all parties concerned, as usually, the term contract is applied to mean at least bilateral expression of wills. Real relations show that equality prescribed by the law is frequently limited due to certain circumstances. One of the parties’ stronger position is also part of the range of those circumstances and it may induce, “coerce” others to agree to the unilateral, uncompromising terms offered. Such a practice concerns all societies with market economy both in the sphere of consumer or other types of legal interaction. Usage of standard terms is the most evident form to reinforce positions of stronger party through contractual ties and the legislator is opposing this with the tool of good faith equipped with additional features to confront abuse of power on different levels. Procedural and substantive control mechanisms for standard terms are part of Civil Code since its adoption based on realities of that time. Those realities as altered for now condition existing mechanisms to appear as less adequate; due to internal systemic inconsistencies and based on practical experience they seem no more convincing and effective. The present essay attempts to show existing normatives form different angle and through foreign practice background. This could be useful through the process of implementation of European principles into Georgian law.

Keywords


Standard terms of the contract, ambigouos standrd terms, procedural fairness control, essential fairness control, contra proferentem, “grey” and “black” lists of standard terms, harmonisation with EU law

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