Chapter 14: Standard Trade Terms and Unfair Terms

Question 1

Standard trade terms (definiton)

Answer 1

Standard trade terms are drafted in advance and are intended to be used for a plurality of contracts (to promote easy circulation of wealth). They are only effective if the party knew/should’ve known the contents according to ordinary due diligence. This is an extraordinary provision as it goes the nature of a contract.

Question 2

ignorantia legis non excusat

Answer 2

The principle of ignorantia legis non excusat also applies to STT.

Question 3

Why does the law aim at protecting consumers? Is this effective?

Answer 3

STT’s are clearly advantageous to the party setting down the term, so the law aims to protect the consumer by imposing limitations. This does not work effectively as parties often sign without reading (the costs of reading would be greater than the benefits, take the risk).

Question 4

European Directive of Unfair Terms

Answer 4

To prevent exploitation, the EU has created the European Directive of Unfair Terms (all countries must implement it but can choose how e.g. Italy created a whole book “Consumer Code”).

Courts are allowed to invalidate STT which cause a significant imbalance in contracts between consumers and businesses (TERM invalid, not the entire contract).

Courts must provide nullity of STT of its own motion

Question 5

Negotiation of terms

Answer 5

If a term has been individually negotiated, they cannot be considered unfair (as it shows the provisions are not aimed at protecting the inherently weak).

Question 6

Why are terms that are legal provisions not unfair?

Answer 6

Terms that are legal provisions cannot be unfair as it denies the nature of the legal system.

Question 7

“Blacklist” of void terms (even if they have been negotiated)

Answer 7

Ones which limit liability in case of death, that exclude claims in case of non-performance, and which imply total acceptance of terms.