Unfairness in European contract law and international trade contracts

Abstract

The problem this thesis deals with is a vague but omnipresent factor in contract law, which has not been satisfactorily defined or described. It is nevertheless sometimes mentioned in legislation and judgements, and can have drastic impact on the validity and content of contracts. Its power is such that it can quash even the most basic principles of Contract Law such as Freedom of Contract and Pacta sunt servanda, and ignore the autonomous will of the contracting parties. This factor is UNFAIRNESS. The impact of unfairness in contracts is not just hypothetical, it has a sneaky way of entering even the most simple lives of the citizens, for everyone has a personal experience of an unfair contract. But while exclamations about unfair contracts are common, and despite it usually being easy to recognise unfairness when we see it, it is uncommon to look under the surface and analyse the inner system of it; ask whether it was the contracting process or its outcome which was unfair, which part was unfair, when it became unfair, etc. This is however important to do from a legal point of view, for unfairness in contracts can materialise in many different ways, be perceived differently by individual parties to the same contract, and do so at different times in the life of contracts. Individual provisions of a contract may be considered as unfair, the contract as a whole, or even the contract-making itself in certain fields. Contracts which were normal and fair at the outset may, as time passes, become unfair because of subsequent development or events. And all of this is important, as unfairness may lead to the contract in question being amended or invalidated. The vagueness of such a potent legal concept, and the insecurity it brings to contractual transactions, is unacceptable. A clarification and delimitation of the concept would certainly be helpful.