Realization of Principle of Protection of Weaker Party in Control of Unfair Terms in Contract Terms
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Abstract
The article analyses whether the principle of the protection of the weaker contractual party is realized during the control of unfair contract terms having in mind the Council Directive //EEC of April on Unfair Terms in Consumer Contracts. This problem is examining through the analysis of the definition of the consumer as the weaker party and the implementation of fairness principle (principle of good faith).
The law aiming to protect the weaker party has chosen such method of regulation which helped to describe some groups of weaker persons and to define some indicators of the "weakness". These features of the weaker party determine also the application of special legal regime. These indicators of the "weakness" are abstract, prescribed in conformity in advance presumable situation of weakness. The conception of good faith principle developed in the court practice depends on the principle of party autonomy. It all goes to raise the question whether the regulation of unfair terms ensures the realization of the principle of the protection of the weaker party. Whether it is from the unfair terms protected the person who need such protection? Whether the courts realize the real justice or it is realized only the provisions of formal law? Whether formal law regulate, describes rules which allow for the courts to implement justice?
It is believed that the abstract concept of the consumer described by objective features, which is established in formal law and developed in the practice of the European Union Court, fails to realize the principle of the protection of the weaker contractual party practically. Due to the impossibility to assess the specific situation of the concrete person, it may happen that some norms will be applied to the wrong person in the view of the principle of the weaker party’s protection – not to the one who needs such kind of protection.
The control of unfair contract terms must be established in cases when the contract is made with the party who is considered to be weaker than another party due to its insufficient experience, knowledge, information, negotiation power or other circumstances, in other words it is necessary to estimate the concrete situation of the specific person, thus providing possibilities to the court to apply the principle of good faith broadly and implement justice.
The law aiming to protect the weaker party has chosen such method of regulation which helped to describe some groups of weaker persons and to define some indicators of the "weakness". These features of the weaker party determine also the application of special legal regime. These indicators of the "weakness" are abstract, prescribed in conformity in advance presumable situation of weakness. The conception of good faith principle developed in the court practice depends on the principle of party autonomy. It all goes to raise the question whether the regulation of unfair terms ensures the realization of the principle of the protection of the weaker party. Whether it is from the unfair terms protected the person who need such protection? Whether the courts realize the real justice or it is realized only the provisions of formal law? Whether formal law regulate, describes rules which allow for the courts to implement justice?
It is believed that the abstract concept of the consumer described by objective features, which is established in formal law and developed in the practice of the European Union Court, fails to realize the principle of the protection of the weaker contractual party practically. Due to the impossibility to assess the specific situation of the concrete person, it may happen that some norms will be applied to the wrong person in the view of the principle of the weaker party’s protection – not to the one who needs such kind of protection.
The control of unfair contract terms must be established in cases when the contract is made with the party who is considered to be weaker than another party due to its insufficient experience, knowledge, information, negotiation power or other circumstances, in other words it is necessary to estimate the concrete situation of the specific person, thus providing possibilities to the court to apply the principle of good faith broadly and implement justice.
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
