Abstract
Europe has a long standing tradition of law demanding good faith and fair dealing in contractual relationships. Such provisions have in many traditions been subject to harsh interpretation and “stretching” in order to deal with contract terms that are considered unfair. With time, many of these provisions have also been supplied with some form of regulation of standard terms.
In this chapter the Nordic regulations will then be compared with the CESL and the Draft Common Frame of Reference, and, through this comparative analysis, the author also hopes to contribute towards a further understanding of pan-European unfair contract terms regulations. In light of the differences, certain challenges for European businesses selling to Nordic countries under the CESL will be highlighted. Finally, this chapter will conclude with some comments on the possible development of common European legislation on unfair contract terms in the future.
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Notes
- 1.
The most common referred to example might be “treu und glauben” in BGB § 242, famous, together with the introduction to the law of obligations, for filling an entire band of the Staudinger commentary to the BGB.
- 2.
Up until Sweden and Finland joined the EU in the early 1990s, the Nordic countries, and especially the Scandinavian ones, Sweden, Norway and Denmark, cooperated closely on a large amount of legislation, over an extensive period of time.
- 3.
The Icelandic provision will not be considered further, since the author’s Icelandic is rather limited.
- 4.
The effect of the passing of the new provision in § 36 on the use of § 33 has been different in each of the Nordic countries. While § 33 is invoked and applied relatively often in Norway, it has, to a large extent, been replaced by § 36 in Sweden and Finland, cf. Sisula-Tulokas (2005, pp. 324–325).
- 5.
Official translations do not exist; the translations are a combination of unofficial translations from various publications together with the author’s own.
- 6.
SOU 1974:83, pp. 83–84.
- 7.
Originally this was not the case for the Danish provision. It was brought into line with the other Nordic provisions in 1994.
- 8.
Due to the amount of material, the limited space available, and trying to balance the text to some extent, another fairly well known option used in legal texts will also have to be invoked in this chapter: a somewhat random selection of illustrative court decisions based on the author’s discretion.
- 9.
Published in Norsk Retstidende (Rt.) 2012, p. 355 (Lognvik), Rt. 2012, p. 1926 (Fokus bank) and Rt. 2013, p. 388 (Røeggen).
- 10.
One of the factors in a decision to treat a case in Grand Chamber is whether the Supreme Court might deviate from a prior ruling, see the Act on the Courts of Justice § 5.
- 11.
In practical terms, this leads to a restitution of the performance of the contract; i.e. that in this case, the consumer was compensated for the loss caused by the investment.
- 12.
Cf. Giertsen (2012, p. 212).
- 13.
Similarly, also in HD 1988:24; see Wilhelmsson (2008, p. 121).
- 14.
See further Gomard (2005, pp. 214–215).
- 15.
Cf. Schultze et al. (2012, p. 378).
- 16.
DCFR Volume I (2010, p. 656).
- 17.
Lando and Beale (2000, p. 270).
- 18.
Cf. Schultze et al. (2012, p. 379).
- 19.
For an outline of policy considerations (or lack thereof) behind this rule, see Hellwege and Miller (2013, pp. 453–455).
- 20.
DCFR Volume I (2010, p. 646).
- 21.
Lando and Beale (2000, p. 269).
- 22.
DCFR Volume I (2010, pp. 634–635).
- 23.
See e.g. Hellwege and Miller (2010, p. 440).
- 24.
Cf. DCFR Volume I (2010, p. 635).
- 25.
Lando and Beale (2000, p. 269).
- 26.
Also critical at this point, Schultze et al. (2012, p. 385).
- 27.
DCFR Volume I (2010, p. 635).
- 28.
On the possible effects of this criterion in the CESL on the burden of proof, see Schultze et al. (2012, p. 385).
- 29.
- 30.
- 31.
Cf. Schultze et al. (2012, p. 382). An interesting middle way can be found in art. 2.1.20 PICC, which states that standard terms that are “of such a character that the other party could not reasonably have expected it” are ineffective unless expressly brought to the other party’s intention and accepted.
- 32.
For the origin of the expression “grossly deviates from good commercial practice”, see Schultze et al. (2012, p. 394).
- 33.
A similar opinion is expressed in Schultze et al. (2012, p. 395).
- 34.
For a European seller trading with Nordic consumers, jurisdiction will be in the consumer’s domicile according to the Brussels I Regulation, EC 44/2001 (Sweden, Finland and, although having opted out of the area of freedom, security and justice, also Denmark, by special agreement) and the Lugano Convention (Norway). As for choice of law, the Rome I Regulation leads to the law of the consumer’s habitual residence. This means that such a case could most likely come before a Nordic court and be decided according to the relevant Nordic law (except for Norway, as Norway is not bound by the Rome I Regulation, EC 593/2008, as it is not considered EEA relevant, and has legislation stating that the seller’s place of business is the main connecting factor for the choice of law).
- 35.
Cf. Hellwege and Miller (2013, p. 440).
- 36.
See further Hellwege and Miller (2013, p. 441).
References
DCFR Volume I: von Bar C, Clive E (ed.), Principles, Definitions and Model Rules of European Private Law. Draft Common Frame of Reference (DCFR). Full edition. Oxford University Press, Oxford (2010).
Giertsen J (2012): Avtaler, Universitetsforlaget, Oslo.
Gomard B (2005): “Rimelighed og god skik. Bunden eller fri retsdannelse og fortolkning?”, pp. 205–225, in Flodgren B et. al. (red), Avtalslagen 90 år, NorstedtsJuridik, Stockholm.
Hauge H (2009): Ugyldighet, Universitetsforlaget, Oslo.
Hellwege P, Miller L (2013): “Control of Standard Contract Terms”, pp. 423–468 in Dannemann G, Vogenauer S (ed.), The Common European Sales Law in Context. Interactions with English and German Law, Oxford University Press, Oxford.
Lando O, Beale H (2000) (ed.): Principles of European Contract Law, Parts I and II, prepared by the Commission on European Contract Law, 2000.
Schultze R (ed.), Mazeaud D, Sauphanor-Brouillaud N (2012): Common European Sales Law (CESL). Commentary. C. H. Beck/Hart/Nomos, München 2012.
Sisula-Tulokas L (2005): “Skumma affärsmetoder, tvångochohederlighet” pp. 317–328, in Flodgren B et. al. (ed.), Avtalslagen 90 år, NorstedtsJuridik, Stockholm.
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Marthinussen, H. (2015). Unfair Contract Terms. In: Plaza Penadés, J., Martínez Velencoso, L. (eds) European Perspectives on the Common European Sales Law. Studies in European Economic Law and Regulation, vol 4. Springer, Cham. https://doi.org/10.1007/978-3-319-10497-3_6
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