Legal Conditions of Unusual Terms Institution

• Author: Eugen Sârbu
• Profession: Faculty of Law, Bucharest University, Romania
• Pages: 44-58

Legal Conditions of Unusual Terms Institution

PhD. student Eugen SÂRBU

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Abstract

The institution of unusual clauses is a relatively new institution in the Romanian

civil law, which has generated different interpretations in practice and in doctrine and

which is aimed at preventing imbalances cau sed by the use of standard clauses. The

standard terms serve the interests of the proposing party, setting out important aspects in

the contractual relationship that is formed. They tend to change the contractual balance

toward which each type of contract regulated by the legislator is approaching. This arti-

cle analyses the legal condition s of unusual terms, which place one of the parties in a

dominant position, shall entail. In particular, we will analyze (I) where th e Romanian

legislator was inspired to regulate the non-common clauses, (II) the conditions for a

clause to be qualified as non-usual, (III) what penalty occurs in the event of non-co mpli-

ance with the legal provisions on uncommon clauses, (IV) how we can derogate from the

effect of the clauses, making them effective and holding the parties to perform that clause.

Keywords: standard clauses, unusual clauses, contractual imbalance, profes-

sional.

JEL Classification: K12

1. General presentation of unusual terms institution

The unusual terms institution derives from the abusive clauses regulated

in consumer law. Both notions result from the same idea: it is unfair for a party

to be bound by contractual provisions which it has not read and understood. „The

purpose of a regulation based on the theory of procedural fairness is to protect

the internal will. The legal provisions edited for this purpose emphasize, in par-

ticular, the procedure of forming the contract and less the content of the con-

tract.”

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Both institutions are based on negotiation and information formal duties.

Both unfair and unusual terms regulate the imbalance between the par-

ties, by establishing mechanisms able to protect the weaker party (the consumer,

the weaker party in the negotiating process), setting aside terms on which there

is a suspicion of lack of consent. Their common feature is the lack of negotiations

and the contractual imbalance generated by them.

The Romanian legislator was inspired by the Italian Civil Code, namely

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Eugen Sârbu – Faculty of Law, Bucharest University, Romania, eugen.sarbu@oglindalawyers.ro.

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B. Oglindă, Clauze neuzuale în reglementarea Noului Cod civil român - provocare pentru

jurisprudenţă şi doctrină, “Pandectele Române”, no. 3/2015.