유럽공통매매법의 불공정한 계약조항

Unfair contract term in CESL

CESL (P) Chapter 8(from Art 79 to Art 86) sets up for Unfair Contract Terms. The scope of the CESL (P) includes both B2B and B2C contracts, but opts for an (un)fairness control that differs according whether the transaction is B2C or B2B. The classical view of the control of unfair terms is that it is a form of protection for weaker party and compensation for unequal bargaining. The party who did not supply an unfair term is not bound to it, whereas the other party is. If the contract term is unfair within the meaning of either CESL (P) art 83 or art 86, the effect of the unfair term is not binding on the recipient. But if the unfair term does not represents a fundamental aspect of the contract, the other terms of the contract continue to remain binding. Provisions of the CESL (P) on unfair contract terms are of mandatory nature. Thus, parties may neither exclude their application nor vary their effects. The scope of application of the unfairness test contains two different exclusion rules: firstly, for non-mandatory rules of the CESL (P) if the parties have not made an agreement on that issue; and secondly, for clauses defining the main subject matter and the price. A trader, who supplies contract terms that have not been individually negotiated, is subject to a duty of transparency in B2C Contract. A contractual term, which has not been individually negotiated, shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties, rights and obligations arising under the contract, to the detriment of the consumer. CESL(P) Art. 84 contains a list of terms that are always to be perceived as unfair (black list). Therefore, their mere presence in this list is regarded as unfair contract term. In other words, the fairness of such terms does not need to be assessed in accordance with CESL(P) Art. 83. CESL(P) Art. 85 contains a list of terms which typically constitute a serious disadvantage for consumer and therefore are presumed to be unfair in B2C contracts if such a term is supplied by the trader (grey list). Thus, if the term is included in the contract, the trader has to prove that the term is not unfair within the context of CESL(P) Art. 83 in seeking to avoid its ineffectiveness.In a contract between traders, a contract term is unfair for the purposes of this Section only if it is of such a nature that its use grossly deviates from customary commercial practice, contrary to good faith and fair dealing. CESL(P) Art. 86 Paragraph 1 states that a contract term is unfair if it forms part of non-negotiated terms and it is of such nature that its use grossly deviates from good commercial practice, contrary to good faith and fair dealing.