In the modern age of the e-commerce and digitalization, the standard terms are used widely. Therefore, it is important to give attention to the regulation on the standard terms and the unfairness of such terms worldwide. The present paper will analyze European, Russian and Ukrainian legislation regulating unfairness of the contract term and the definition of the standard contract term.
In the EU, consumer protection is considered as one of the main elements of the European public policy[1]. In Russia and Ukraine consumer protection is not so developed as in the EU, however, the rules on unfair terms are based on subsequent European legislation, but with the specific difference due to the different legal tradition. In the present paper, such similarities and differences will be described.
In the age of widespread smart contracts and digital services, standard terms become used around the world not just in B2C, but also in B2B contracts. Therefore, for the legislator, it is not only important to give a proper attention to the consumer protection rules, but also to protect small and middle businesses from the usage of unfair terms (especially, in case of existing monopolies and limited choice of supplies or distributors). In Part II, the author will analyze standard terms regulations of chosen jurisdictions, not only in B2C but also in B2B contracts.
Russian and Ukrainian legislation on unfair terms based on the Soviet legal tradition, but, at the same time, try to follow European legislation. In Part III, the author will focus on differences and similarities in European, Russian and Ukrainian legislation on the unfairness of the term and on concepts, which bear importance in defining unfairness of the term. Moreover, the focus will be given to the unfairness of subject matter and the price of the contract in mentioned jurisdictions, giving examples from case-law on consumer credits.
Standard terms can be profitable both for consumers and traders since they lead to savings in transaction costs and lower prices when the market is competitive, however, when the market is based on monopoly, only proper consumer law regulations can assure efficiency of standard terms[2]. Moreover, traders of the same sector can offer similar standard terms in a very competitive environment, for example, software retail[3]. Therefore, consumer protection and assessment of standard term's unfairness is connected to the position of the competition on the certain market.
In the EU, the provisions on unfair and standard terms in B2C contracts are determined in the Council Directive 93/13/EEC on unfair terms in consumer contracts (here and after - "the Unfair Terms Directive"). However, standard terms can be used in B2B contracts and this area is not very regulated on the EU level - there are provisions in the Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law (here and after - "CESL") and in the Principles, Definitions and Model Rules of European Private Law (here and after - "DCFR"), but some Member states do regulate this issue on national level (Germany[4] or Nordic countries[5], for example).
Therefore, both cross-border and domestic B2C contracts are regulated on the EU level with the Unfair Terms Directive (there are some views to set maximum harmonization level with this directive[6], but not fully supported[7]), unfairness in standard terms in domestic
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B2B contracts left to national legislation and on cross-border level can be regulated with CESL and DCFR[8].
According to the EU law, the standard term is described as a term, which was not individually negotiated by the parties, drafted in advance by a trader for several transactions involving different parties and the weaker party did not, therefore, had a chance to influence such term and its consequences, particularly in the context of a pre-formulated standard contract[9].
The term is not individually negotiated if it has been offered by one party and the other party did not have a possibility to influence its content[10]. At the same time, terms, which were not brought properly to a party's attention, even if that party signs the document, considered to be as not negotiated individually[11]. Thus, standard terms contained in the contract itself will normally be binding upon the signature under the contract as a whole, as long as they are reproduced above that signature and not, on the reverse side of the document, on the other hand, standard terms prescribed in a separate document or electronic file will normally have to be referred to expressly by the party[12]. Therefore, signing the contract does not bear the meaning that the contract does not include standard terms.
At the same time, some authors and Member states (Germany, for example[13]) distinguish so-called "surprising" standard terms, as terms, which are so uncommon to particular contract type, so as are unexpected to be found in this particular set of standard terms[14]. Therefore, such presence of "surprising" standard term shows, that such term was not negotiated per se and it can be considered as a breach of transparency principle[15], which will be discussed further.
Some Member states implement special assessment on the subject of unfairness of negotiated terms, it is advised to the national authorities to take into account the actual possibility of consumers to influence the contract term and in the absence of specific national rules, the unfairness of previously negotiated terms should be assessed under the principle of good faith[16]. There is a position that the scope of the Unfair Terms Directive should be widened to negotiated terms as well[17]. It can be possible taking into account possibility of unfair commercial practice during the negotiation of the term.
In Ukraine, there is no special notion in assessing the unfairness of the contract term based on the fact whether it was previously negotiated or not. However, the standard terms can be assessed based on the notion of the adhesion agreement, which can be described as agreement with previously non negotiated terms, where one party is offering the standard contract and the choice of other party is limited to acceptance or withdrawal[18]. There are two possible ways to assess unfairness of such contracts, first, for the consumer in B2C contracts to prove that after such adhesion his rights become limited or it caused significant imbalance between parties, secondly, for the trader in B2B contracts to prove that the trader making adhesion did not know and could not know the consequences of an adhesion[19].
In Russia, the same principle applies, but with differences. As in Ukraine standard terms are regulated on the base of provisions on the adhesion agreement, but Russian legislation does not distinguish between B2B and B2C contracts in legal consequences[20]. However, in Russia provision on legal consequences in the mentioned article is also applied to individually not negotiated terms in contracts other than adhesion agreement[21]. Moreover, if one trader offers a contract draft with terms leading to an imbalance between the parties and other trader is in position resulting to difficulties in discussing such terms (weaker party of agreement), then the provision on adhesion agreement is applied[22].
Both in Ukraine and Russia, another form of the contracts with the usage of standard terms prescribed - public agreement, under which the trader is obliged to enter into an agreement with any consumer on the same conditions as with other consumers or as advertised before[23]. Such agreements are concluded generally with traders in monopolistic position on the market[24] and are aimed to protect consumers from unfair commercial practices.
Therefore, both Ukrainian and Russian legislator does not make difference between B2B and B2C contracts in legal right of the weaker party to change or to set aside the agreement
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with standard terms. Russian legal rules are more liberal than Ukrainian one to not individually negotiated term in other types of contracts - in Ukraine, it has to be adhesion agreement per se, but in Russia, weaker parties' protection mechanism can be used in other agreements, which include not negotiated terms. However, in Russia, special provisions on adhesion agreement are almost the only possibility to protect weaker party from unfair terms, which also will be discussed in details further. At the same time, in Russia some traders (financial institutions) intend to include in contracts, which by nature are adhesion agreements, the term specifying that another party is aware that present agreement is not adhesion agreement, however, courts consider such provisions as ones violating consumer rights[25].
According to the Russian courts, some agreements, even though they might look like adhesion agreements or public agreements by characteristics, are not considered as such, for example, bank deposit contracts, if terms of such agreement are different from agreements with other clients[26]. As in Russia adhesion agreement provision is the most effective instrument of protection from unfair terms, such position of the courts can lead to numerous violation of consumer rights. On such qualification influences the absence of subject matter and price terms separation in Russian and Ukrainian legislation, which will be discussed further.
In Ukraine, standard terms are considered as ones against the contractual freedom of the parties and, therefore, de jure used just in adhesion agreements and public agreements, but de facto there are many mixed agreements with characteristics of adhesion agreement and public agreements (contracts on public transportation, rent, insurance, consumer credits)[27]. At the same time, adhesion agreements are widely used in investment activity in the real estate sector, which opens a possibility of unfair treatment and abusive practice[28]. Moreover, using adhesion agreements for public transportation services, payment for utilities, electricity or similar services with governmental regulations or natural monopoly being involved, the consumer has no legal instruments to protect rights and has no right to terminate the agreement or change it if the procedure it too complicated for the trader (heating and water services, for example[29]). Therefore, such practice puts a consumer in a position, where regulation on unfairness of a standard term can be effective only in contracts with private companies and not effective in contracts with governmental institutions, contracts on community services and consumer credits (will be discussed in details further).
Moreover, the position of the consumer in adhesion agreement in Ukrainian and Russian legislation is much worse, compared to the EU legislation on standard terms[30], as the consumer (or trader) bears the burden of proof in the case of an imbalance between parties[31]. Therefore, it is very complicated to enforce the rights under adhesion agreement in Ukraine and Russian Federation, especially in contracts with traders in monopolistic position on the market.
Looking from the perspective of Ukrainian and Russian law, similar to the discussion on standard terms, regulation on unfairness applicable both to B2B and B2C contracts, from the perspective of good faith principle[32].
In the EU, the unfairness of a contract term in B2B contracts is assessed in the CESL and DCFR, according to which, not individually negotiated term, which is contrary to good commercial practice, good faith and fair dealing is defined as unfair[33]. Therefore, on a cross-border level only optional instruments can protect weaker party from unfair terms application in B2B contracts[34].
On the other hand, the unfair term in B2C contracts in the EU is defined, as not individually negotiated term, which is contrary to the requirement of good faith, fair dealing, transparency and/or causes a significant imbalance in the parties' rights and obligations[35]. In different legal traditions, good faith and balance of the parties can be separate and self-dependent requirements to the fairness of the term[36].
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In Ukraine and Russia good faith principle is independent legal instrument for protection from the unfair terms (together with adhesion agreement provisions, as discussed above), however, in the EU good faith principle is considered as an element to assess unfairness of not negotiated terms.
According to the EU practice, a contract term also can be unfair per se, in connection to other circumstances of the contract conclusion (for example, unfair commercial practice in advertising consumer credits with rates lower than in actual contract), or in connection with other contract provisions[37]. Assessing unfairness of the term, quality of the consent, legitimate expectations of the weaker party, economic necessity of the term also should be taken in account[38].
In the EU, standard terms are widely used in online contracts, as a consumer do not have a direct contact with a trader. Most used terms in online contracts (according to the study on Google, Twitter, Facebook, Dropbox contracts), which can be considered as unfair are: unilateral changes in the contract price, to service itself, unilateral termination, liability limitation, jurisdiction clause against Brussels I rules and choice of law clause against Rome I rules[39]. Considering mentioned, in the EU higher risk to face unfair terms is in digital environment, however, in Ukraine and Russian Federation the most risky are contracts with governmental monopolies, on community services and consumer credits.
Moreover, in the EU, the notion of unfairness is accessed only if the term is not individually negotiated (standard term). There are some views on accessing unfairness of negotiated terms as well[40], however, the opponents stress that such approach will stimulate careless behavior from the consumer or weaker party[41]. The author offers to widen such assessment in the EU law to negotiated terms in B2B and B2C contracts, where one party is in a weaker position to negotiate such term, effected by unfair consumer practice or transparency principle is violated.
In Ukraine, the unfair term in B2C contracts is defined as a term, which is contrary to the good faith, causing significant imbalance between the parties[42] and harming the consumer[43]. The most widely unfair terms are used in contracts with monopolies (both governmental and private ones), where an imbalance between parties is a result of a rise of expenses or decrease of a value of a contract execution for the weaker party[44].
Nevertheless, consumer credit contracts are the biggest problem for Ukrainian legislation. Until 2011, the regulation on consumer credits was behind the scope of the consumer protection rules[45], which caused many legal issues and impossibility to protect consumer rights. Nowadays consumer protection rules widened to consumer credits, but the problem of unfair terms did not disappeared. According to the USAID 2017 report, more than 50% of consumer credit contracts in Ukraine include unfair terms[46]. Assessing such contracts, the priority of consumer protection rules on adhesion contract rules should be remembered, and, therefore, consumer credit contract should be invalid if it includes unfair terms[47], however, it might be not in favor of the consumer considering legal consequences (double restoration of rights). Therefore, for the consumer, it is better to insist on the change of such terms based on adhesion agreement clause.
On the other hand, in Russia, the notion on unfairness of the term in B2C contracts is absent at all. Analyzing Civil Code[48] and the law "On consumer protection"[49] it is possible to reach conclusion that contracts against principle of good faith, abuse of rights and contract terms, which are putting the consumer in less favorable position are considered to be unfair. According to the Supreme Court, speaking of adhesion agreement (discussed in Part II) the court stressed, that unfairness and legal consequences of terms in adhesion agreements (or not individually negotiated terms) should be accessed if there is significant imbalance between the parties[50]. Therefore, unfairness basing on the imbalance between parties in Russia is assessed only in adhesion agreements, which (considering mentioned court practice and burden of proof) leads to serious gap in protective mechanisms from unfair terms.
According to the Russian legislation, there are three existing instruments for the weaker party to be protected from unfair terms[51]: to claim abuse of rights[52], claim that agreement
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was a result of a fraud or unfair commercial practice[53], claim that it was adhesion agreement[54]. However, neither one of this instruments can solve the problem of unfair terms' usage[55] as there is no legal mechanism to prove which terms are harming the weaker party and no legal act providing definition or description of such unfairness.
Therefore, in Russia, the unfairness of terms (in B2B and B2C contracts) has a very vague definition, the legal consequences, notions, characteristics of unfairness[56], compared to the EU and Ukraine. The weaker party can be protected from unfair terms only claiming the violation of the principle of good faith or using the adhesion agreement regulation[57]. Therefore, there is an urgent need for detailed unfair terms regulations in Russia.
It is worth to mention, that compared to European court practice[58], in the Russian Federation and Ukraine there is no application of erga omnes effect to unfair terms in order to protect collective consumer rights. However, in all discussed jurisdictions can be noticed connection with unfair terms and unfair commercial practices[59]. Moreover, the assessment of the unfairness of the term through good faith principle in Ukraine and Russia can be explained by Soviet legal tradition, which was also present in Poland and raised a clash in implementing the Unfair Terms Directive[60].
There is a special regulation on the unfairness of certain terms of the contract specific to the European jurisdiction. Basing on the EU law, neither the main subject of the contract nor the price can be considered as an unfair term, so far as these terms are in a plain intelligible language[61]. Therefore, such terms can be assessed only through transparency principle.
According to the position of CJEU, the main subject of the contract is understood as the describing the essential obligations of the contract and characterize it[62]. In every case, the main subject of the contract need to be assessed from the perspective of that type of the contract. For example, in the insurance contract, the term of an insurance contract ensuring that loan repayments will be covered in the event of the borrower's total incapacity for work is a subject matter of the insurance contract[63] and insurer's liability is not a part of subject matter[64].
A bit different issue takes place with the numerous case-law connected to the consumer credits in Swiss francs. According to the position of CJEU on this matter, not individually negotiated term of the loan agreement in foreign currency in B2C contracts, pursuant to which the exchange rate of that currency is applied for calculating the loans repayment can be considered by the national court as a part of the main subject or a price of the contract, however, a term, which includes the difference between the selling rate of exchange and the buying rate of exchange of the foreign currency, cannot be considered as such[65].
Considering the notion of a plain intelligible language, it includes requirements for the contract term to be formally and grammatically intelligible, to be "understandable" to average consumer and puts the obligation to the trader to disclose subsequent information on liability, economic consequences, prior to entering the agreement, to the consumer in order him to understand all pro and contras of such contract[66]. Therefore, the right for information is the core of the transparency principle and one of the main consumer rights[67]. In consumer credits, such transparency requires the mechanism of conversion for the foreign currency and the relationship between that mechanism and other contractual terms on the advance of the loan to be clear, so that that consumer will be able to evaluate all economic risks[68].
To assess unfairness of B2C contracts in foreign currency with a fixed rate in the EU, firstly, whether a certain term falls within the subject matter or price exception need to be investigated. For example, the amount of the loan in consumer credit contracts falls under exception and the consumer can claim unfairness on the base of transparency requirements, but the mechanism of the calculation of such an exchange rate or the obligation to follow the exchange rate of certain bank can be considered as unfair.
Therefore, in the EU transparency principle is one of the core characteristics of the fairness of the contract term and, according to some au-
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thors, it should be considered as independent notion to determine unfairness of a term[69] (not only in relation to subject matter and price) both negotiated and not negotiated ones. The author supports this idea, as the transparency and possibility of the weaker party to weight all economic risks prior concluding a contract bears important role not only in B2C, but in B2B contracts as well.
In Ukraine and Russia situation considering transparency principle, subject and price of the contract differs. As was mentioned, in Russian legislation regulation on the unfairness of the term, and, subsequently its relation to subject-matter and the price of an agreement is absent, unless such term is assessed on the base of the principle of good faith. However, in Ukraine there are specific legislation on contract terms connected to the price and subject-matter, according to which the price and the main subject of the contract can be considered as unfair[70]. Therefore, in Ukraine, subject-matter and price of the contract is assessed on the same basis as other contract terms.
Moreover, as was mentioned above, in Ukraine, some requirements to the unfairness of the term are special in the consumer credit contracts. According to the current regulations it is forbidden to enter the consumer credit contracts denominated in foreign currency[71], however, it is not forbidden to enter an agreement, where repayment will be made in national currency with the equivalent to foreign currency. According to the Supreme Court decision, contract terms, which are defined in the variable values, or the terms, which stipulate further changes in consumer expenses (excluding interest rate) are considered unfair[72]. Therefore, consumer credits in foreign currency with information on the contract price and the main subject of the contract defined in rates and variable values are considered unfair in Ukraine.
Both in Russian and Ukrainian legislation, transparency requirements are absent in B2B and B2C contracts, except some language and information requirements for specific types of contracts. According to the Constitution of Ukraine and Civil Code of Ukraine, the agreement must be concluded in the Ukrainian language[73]. This requirement is important in contracts with foreign elements, where the subject of the contract (foreign products) can be written in a foreign language. However, there are some legal requirements on identification in Ukrainian for certain categories of products, but only after crossing the custom border[74]. Therefore, in Ukraine, there are no specific requirements to the language and prior information, needed to be provided to the consumer, except certain contracts (for example, in consumer credit contracts the trader should inform prior to entering an agreement on the total sum and monthly payments[75]).
Analyzing legislation of the EU, Russia and Ukraine, it can be noticed, that all jurisdiction discussed can learn from one another's application of standard term regulation. In the EU in order to secure consumer protection and competition, more detailed regulations on the unfairness of the standard terms in B2B contracts on the domestic and cross-border level should be applied. For national authorities it is worth to consider to apply transparency and good faith principle as separate notions assessing unfairness of the term. In Ukraine, regulations on adhesion agreement should be widened to not individually negotiated terms in other types of contracts (as in Russian regulations on adhesion agreement). Both in Russia and Ukraine, more attention to consumer protection in connection with standard terms should be dedicated (for example, to reverse the burden of proof).
Considering the notion of unfair terms, all jurisdiction agree on assessing unfairness of on the base of the principle of good faith and balance between parties. In the EU, unfairness of negotiated terms needs to be assessed in conjunction with the possibility of unfair commercial practice and considering the position of the weaker party in such negotiations both in B2C and B2B contracts. In Ukraine more detailed legislation on consumer protection with relation to consumer credits, should be developed. In Russia the normative act with detailed regulation on unfair terms in contracts need to be developed in order to protect small businesses
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and consumers from monopolistic manipulations. ■
NOTES
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[2] Hatzis A. N., An Offer You Cannot Negotiate: Some Thoughts on the Economics of Standard Form Consumer Contracts, Standard Contract Terms in Europe: a Basis for and a Challenge to European Contract law, Hugh Collins, ed., Wolters Kluwer Law & Business, Private Law in European Context Series, 2008, Vol. 15, p.56, available at: https://ssrn.com/ab-stract=899008, (last visited 27.09.2018).
[3] Marotta-Wurgler F., Competition and the Quality of Standard Form Contracts: The Case of Software License Agreements, Journal of Empirical Legal Studies, Vol.5, No.3, 2008, p.475, available at: https://ssrn.com/abstract=1186143, (last visited 27.09.2018).
[4] Maxeiner J.R., Standard-Terms Contracting in the Global Electronic Age: European Alternatives, The Yale Journal of International Law, 2003, Vol.28(109), Issue 1, p.134, available at: https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=https://www.google.hu/&httpsredir=1&article=1205&-context=yjil, (last visited 27.09.2018).
[5] Ebers M., Comparative Analysis on Unfair Contract Terms Directive, Consumer Law Compendium, p.352, available at: https://www.consiglionazionaleforense.it/documents/25901/232833/C.+Unfair+Contract+Terms+Directive+(93-13)+.pdf/7c2f3f29-c7ad-45be-a5e2-e482ee67b3da, (last visited 03.10.2018).
[6] CCBE, Proposal for a Revision of Directive 93/13/EC on Unfair Terms in Consumer Contracts, 16.09.2016, p.1, available at: https://www.ccbe.eu/fueadmin/specialitydistribution/public/documents/EUROPEAN_PRIVATE_LAW/EPL_Position_papers/EN_EPL_20160916_CCBE_proposal_for_a_revision_of_Directive_9313EC_on_unfair_terms_in_consumer_contracts.pdf, (last visited 03.10.2018).
[7] Micklitz H.-W., The Proposal on Consumer Rights and the Opportunity for a Reform of European Unfair Terms Legislation in Consumer Contracts, EUI LAW Working Paper No. 2010/12, 2010, p.40, available at: https://ssrn.com/abstract=1698703, (last visited 03.10.2018).
[8] Loos M., Standard Contract Terms Regulation in the Proposal for a Common European Sales Law, Amsterdam Law School Research Paper No. 2012-65, p.25, available at: https:// ssrn.com/abstract=2081857, (last visited 27.09.2018).
[9] Council Directive 93/13/EEC on unfair terms in consumer contracts, 05.04.1993, article 3, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A31993L0013, (last visited 26.09.2018); Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law, COM/2011/0635, 11.10.2011, article 2, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex-%3A52011PC0635, (last visited 26.09.2018); Principles, Definitions and Model Rules of European Private Law, Draft Common Frame of Reference (DCFR), 08.02.2007, article, I:109, available at: https://www.law.kuleuven.be/personal/mstorme/2009_02_DCFR_OutlineEdition.pdf, (last visited 27.09.2018); UNIDROIT Principles on International Commercial Contracts, 2016, article 2.1.19, available at: https://www.unidroit.org/instruments/commercial-contracts/unidroit-principles-2016, (last visited 27.09.2018).
[10] CESL, article 7; DCFR, article, I:110; UNIDROIT Principles 2016, article 2.1.19.
[11] Principles of European Contract law, 1998, article 2:104, available at: https://cisgw3.law.pace.edu/cisg/text/textef.htm-l#a2104, (last visited 26.09.2018).
[12] UNIDROIT Principles 2016, article 2.1.19.
[13] Loos M., Transparency of standard terms under the Unfair Contract Terms Directive and the Proposal for a Common European Sales Law, European Review of Private Law, Vol.23(2), 2015, p.184, available at: https://pure.uva.nl/ws/files/2537599/166461_469191.pdf, (last visited 03.10.2018).
[14] Ibid, p. 183.
[15] Ibid, p. 183.
[16] Green Paper on the Review of the Consumer Acquis, COM/2006/0744, 08.02.2007, article 4.4.1., available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex-%3A52006DC0744, (last visited 26.09.2018).
[17] Ibid.
[18] Цивільний Кодекс України, 435-IV, 02.08.2018, article 634, available at: http://zakon.rada.gov.ua/laws/show/435-15, (last visited 26.09.2018).
[19] Ibid.
[20] Гражданский Кодекс Российской Федерации, 30.11.1994, N 51-Ф3, article 428, available at: https://www.zakonrf.info/gk/, (last visited 27.09.2018).
[21] Ibid.
[22] Постановление Пленума Высшего Арбитражного Суда Российской Федерации «О свободе договора и ее пределах», 14.03.2014, available at: http://www.arbitr.ru/as/ pract/post_plenum/106573.html, (last visited 28.09.2018).
[23] ЦКУ, article 633; ГК РФ, article 426.
[24] Самчук-Колодяжна З.В, Особливості Застосування Публічного Цивільно-Правового Договору, Науковий Вісник Міжнародгого Гуманітаного Університету, 2014, Vol.9(1), p.131, available at: http://www.vestnik-pravo.mgu. od.ua/archive/juspradenc9/41.pdf, (last visited 27.09.2018).
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[26] Определение Верховного Суда Российской Федерации, case N0 305-3C14-5119, 28.04.2016, available at: https://www.zakonrf.info/suddoc/0b7d3459349fcd2de875f-00f83fbce30/, (last visited 28.09.2018).
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[30] Unfair Terms Directive, article 3.
[31] Яворська" p.95; ГК РФ, article 428.
[32] ЦКУ, article 509(3); ГК РФ, article 432; Хатнюк Н.С., Побіянська Н.Б., Тяжкі Обставини та Явно Невигідні Умови Господарського Договору як Підстава Визнання його Недійсним, Юридичні науки, Issue 6-2, 2015, p.42, available at: http://www.lj.kherson.ua/2015/pravo06-2/10.pdf, (last visited 02.10.2018).
[33] DCFR, article, II - 9:405; CESL, 86.
[34] Hesselink M.W., Unfair Terms in Contracts between Businesses, Towards a European Contract Law, J. Stuyck & R. Schulze, eds., Sellier European Law Publishers, 2011, p.15, available at: https://ssrn.com/abstract=1871130, (last visited 02.10.2018).
[35] Unfair Terms Directive, article 3(1); DCFR, article, II - 9:403; CESL, 82, 83.
[36] Fejős A., European, Hungarian and Serbian Models of Fairness in Consumer Contracts and their Application to Consumer Credit, PhD Thesis, University of Szeged, 2013, p.27, available at: http://doktori.bibl.u-szeged.hu/2011/1/Andrea_Fejos_Phd_final.pdf, (last visited 03.10.2018).
[37] Fejős, p.32.
[38] Chen-Wishart M., Regulating Unfair Terms, English and European Perspectives on Contract and Commercial Law, Essays in Honour of Hugh Beale, 2014, p.128, available at: https:// ssrn.com/abstract=2709069, (last visited 03.10.2018).
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[41] Luth H.A., Extending the Scope of the Unfair Terms Discipline in Consumer Contracts - An Economic and Behavioural Perspective, RILE Working Paper No. 2008/01, 2008, p.18, available at: https://ssrn.com/abstract=1115302, (last visited 03.10.2018).
[42] Закон України «Про Захист Прав Споживачів», 1023, 10.06.2017, article 18, available at: http://zakon.rada.gov.ua/laws/show/1023-12, (last visted 26.09.2018).
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[45] Закон України «Про внесення змін до деяких законодавчих актів України щодо врегулювання відносин між кредиторами та споживачами фінансових послуг», 3795-VI, 22.09.2011, available at: http://zakon.rada.gov.ua/laws/show/3795-17, (last visited 26.09.2018).
[46] News Report, Більше 50% кредитних договорів містять несправедливі для позичальника умови, - дослідження, RBK, 2017, available at: https://www.rbc.ua/ukr/news/50-kredit-nyh-dogovorov-soderzhat-nespravedlivye-1505205057.html, (last visited 02.10.2018).
[47] Лехкар О.В., Визнання Договору Приєднання Недійсним, Право, Issue 35, Part 2, Vol.1, p.181, available at: https://dspace.uzhnu.edu.ua/jspui/bitstream/lib/17023/1/, (last visited 02.10.2018).
[48] ГК РФ, article 432, 434, 400, 10, 169.
[49] Закон Российской Федерации «О защите прав потребителей», N 2300-1, 07.02.1992, article 16, available at: https://www.zakonrf.info/zozpp/, (last visited 01.10.2018).
[50] ПП ВАС РФ «О свободе договора и ее пределах».
[51] Бевзенко Р.С., Порядок Погашения Требований Кредитора по Денежному Обязательству: Частный Вопрос Проблемы Несправедливых Договорных Условий, Supreme Commercial Court of the Russian Federation Review, 2010, N 12, p.59, available at: https://ssrn.com/abstract=2173129, (last visited 03.10.2018).
[52] ГК РФ, article 10.
[53] Ibid, article 178, 179.
[54] Ibid, article 428.
[55] Бевзенко, p.59.
[56] Мечетин Д.В., Понятие Недобросовестные Условий Договоров Присоединения в Зарубежном Праве, p.37, available at: https://cyberleninka.ru/article/v/nedobrosovestnye-usloviya-dogovorov-prisoedineniya-v-zarubezhnom-prave, (last visited 01.10.2018).
[57] Жевняк О.В., Пределы Свобды Договора при Заключении Договоров Возмездного Оказания Услуг, p.43, available at: http://elar.urfu.ru/bitstream/10995/34464/1/urrr_2015_09.pdf, (last visited 01.10.2018).
[58] Gerstenberg O.H., Constitutional Reasoning in Private Law: The Role of the CJEU in Adjudicating Unfair Terms in Consumer Contracts, 2014, p.12, available at: https://ssrn.com/abstract=2535884, (last visited 03.10.2018).
[59] Van Boom W.H., Garde, A. and Akseli O., Introduction to 'The European Unfair Commercial Practices Directive', The European Unfair Commercial Practices Directive - Impact, Enforcement Strategies and National Legal Systems, 2014, p.16, available at: https://ssrn.com/abstract=2510837, (last visited 03.10.2018).
[60] Manko, Rafal, Resistance towards the Unfair Terms Directive in Poland: The Interaction between the Consumer Acquis and a Post-Socialist Legal Culture, J. Devenney, M. Kenny (eds), European Consumer Protection: Theory and Practice, 2012, p.432, available at: https://ssrn.com/abstract=2161525, (last visited 03.10.2018).
[61] Unfair Terms Directive, article 4.
[62] CJEU, Árpád Kásler, Hajnalka Káslerné Rábai vs OTP Jelzálogbank Zrt" 30.04.2014, case C-26/13, available at: http://curia.europa.eu/juris/liste.jsf?language=hu&num=C-26/13, (last visited 26.09.2018).
[63] CJEU, Jean-Claude Van Hove vs CNP Assurances SA, 23.04.2015, case C-96/14, available at: http://curia.europa.eu/juris/liste.jsf?num=C-96/14, (last visited 26.09.2018).
[64] Borselli A., Unfair Terms in Insurance Contracts, European Insurance Law Review, No. 2, 2011, Bocconi Legal Studies Research Paper No. 2078866. p.6, available at: https://ssrn.com/abstract=2078866, (last visited 03.10.2018).
[65] Árpád Kásler, Hajnalka Káslerné Rábai vs OTP Jelzálogbank Zrt; Loos, p. 180.
[66] Jean-Claude Van Hove vs CNP Assurances SA.
[67] Fejős, p.35.
[68] Árpád Kásler, Hajnalka Káslerné Rábai vs OTP Jelzálogbank Zrt.
[69] Fejős, p.43.
[70] ЗУ «Про Захист Прав Споживачів», article 18.
[71] Закон України «Про споживче кредитування», 1734-
- 255/256 -
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[72] Постанова ВСУ, 12.09.2012, Case № 6-80цс12, available at: http://www.scourt.gov.ua/clients/vs.nsf/0/FB-94CD2EE199F56BC2257A770050F18B?opendocument, (last visited 26.09.2018).
[73] Конституція України, 30.09.2016, 1401-VIII, article 10, available at: http://zakon.rada.gov.ua/laws/ show/254%D0%BA/96-%D0%B2%D1%80, (last visited 26.09.2018); LIKy, article 639.
[74] Музика М., Актуальні питання Реалізації Права Споживача на Інформацію, Вісник Національної академії Державної прикордонної служби України, 2016, Vol.1, p.1, available at: http://irbis-nbuv.gov.ua/cgi-bin/irbis_nbuv/cgiirbis_64.exe?C21COM=2&I21DBN=UJRN&P21DBN=U-JRN&IMAGE_FILE_DOWNLOAD=1&Image_file_name=PDF/vnadpcurn_2016_1_13.pdf, (last visited 26.09.2018).
[75] ЗУ «Про споживче кредитування», article 9.
Lábjegyzetek:
[1] The author is doctoral student, Doctoral School of the Faculty of Law of the University of Pécs.
Visszaugrás
