| Standard contract terms are facilitating trade by relieving the parties from their need to individually negotiate their contracts. But parties with greater bargaining power also are enabled to redistribute statutory contractual risk distribution in their favor by giving the other party only a take-it-or-leave-it choice. Already in the end of the 19th century, German courts have recognized the problem of unequal bargaining powers and have thus held unfair contracts unconscionable and hence void. But whereas courts in the early 20th century held unfair contractual clauses void if one party exploited a monopoly, the standard was extended vastly beginning in the 1950s. Standard contract terms were then evaluated under the objective good faith standard and hence became an instrument of consumer protection. Yet, also trade contracts are evaluated under the good faith standard. Such evaluation and, in consequence, invalidation of the respective contractual clause, however, is not convincing if standard terms are negotiated among different stakeholders or agents of subsequent parties to such contracts. This will be illustrated by the example of maritime law. Standard terms that are negotiated among international private actors rather have to be seen as transnational law which should not be subject to the control of national courts. |
No. 122/2010
Andreas Maurer
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