Reasonableness

Reasonableness

1. Norway

   • Avtl. § 36
     • Permits the judge to directly set aside or modify terms that are not reasonable
       • May take into consideration: remaining content of the contract, circumstances when entering and subsequent circumstances
       • flexible approach
     • General conditions + individually agreed terms
     • Limitation to the applicability: "agreed documents"
       • Judge has enforced clauses that would have been unreasonable, because of special quality of these contracts

2. Germany

   • Double approach
     • 1: Ensure fair use of general conditions
       • What is considered being agreed between the parties
       • Unusual general conditions: not valid if can not be expected to have taken them into account
       • If uncertainty: the interpretation in favor of the party that has not drafted them
         • Indirect control of the content
     • 2: a condition unenforcable, if against principle of good faith and negatively effects the party that has not drafted them
       • Direct control
   • Does not apply to individually agreed terms (unlike Norway)
     • But: Good faith may set a side terms

3. Italy

   • General conditions
     • provide some measures to ensure that the party that has not drafted them are were of them
       • less invasive than Norway and germany
     • binding on the parties if they were known or could have been known to the party that did not draft them
       • Double signature
   • Individually agreed terms: No measure to ensure that the content is reasonable

4. England

   • Less inclined than Italian law to control content
     • But: Theory of fundamental breach of contract - a condition limiting liability drafted by the party itself - not enforceable. only if that party otherwise would be liable due to fundamental breach
     • Unfair contracts terms act 1977
       • Regulating efficacy and limitation of liability clauses - particulary consumer
   • Case law
     • Gen. con. has to be brought to the table
       • even more when their content is prejudicing this party's position in an unusual way
     • Individually agreed terms: the parties are free to regulate their own interests
       • No measures to ensure reasonableness
       • "the buyer has to pay attention"