Europe

Article 2.104 (ex art. 5.103 A) - Terms not individually negotiated 76

1. Contract terms which have not been individually negotiated may be invoked against a party who did not know of them only if the party invoking them took reasonable steps to bring them to the other party's attention before or when the contract was concluded. 77

2. Terms are not brought appropriately to a party's attention by a mere reference to them in a contract document, even if that party signs the document. 78

Article 2.105 (ex art. 5.106 A) - Merger Clause 79

1. If a written contract contains an individually negotiated clause stating that the writing embodies all the terms of the contract (a merger clause), any prior statements, undertakings or agreements which are not embodied in the writing do not form part of the contract. 80

2. If the merger clause is not individually negotiated it will only establish a presumption that the parties intended that their prior statements, undertakings or agreements were not to form part of the contract. This rule may not be excluded or restricted. 81

3. The parties' prior statements may be used to interpret the contract. This rule may not be excluded or restricted except by an individually negotiated clause. 82

4. A party may by its statements or conduct be precluded from asserting a merger clause to the extent that the other party has reasonably relied on them. 83

Article 2.210 (ex art. 5.211) - Professional's written confirmation 132

If professionals have concluded a contract but have not embodied it in a final document, and one without delay sends the other a writing which purports to be a confirmation of the contract but which contains additional or different terms, such terms will become part of the contract unless: 133

  • the terms materially alter the terms of the contract, or 134
  • the addressee objects to them without delay. 135

Article 4.110 (ex art. 6.110) -Unfair terms which have not been individually negotiated 247 see alsoValidity

1. A party may avoid a term which has not been individually negotiated if, contrary to the requirements of good faith and fair dealing, it causes a significant imbalance in the parties' rights and obligations arising under the contract to the detriment of that party, taking into account the nature of the performance to be rendered under the contract, all the other terms of the contract and the circumstances at the time the contract was concluded. 248

2. This Article does not apply to: 249

  • a term which defines the main subject matter of the contract, provided the term is in plain and intelligible language; or to 250
  • the adequacy in value of one party's obligations compared to the value of the obligations of the other party. 251

CHAPTER 6 - CONTENTS AND EFFECTS 310

Article 6.101 (ex art. 8.101) - Statements giving rise to contractual obligation 311

1. A statement made by one party before or when the contract is concluded is to be treated as giving rise to a contractual obligation if that is how the other party reasonably understood it in the circumstances, taking into account: 312

  • the apparent importance of the statement to the other party; 313
  • whether the party was making the statement in the course of business; and 314
  • the relative expertise of the parties. 315

2. If one of the parties is a professional supplier who gives information about the quality or use of services or goods or other property when marketing or advertising them or otherwise before the contract for them is concluded, the statement is to be treated as giving rise to a contractual obligation unless it is shown that the other party knew or could not have been unaware that the statement was incorrect. 316

3. Such information and other undertakings given by a person advertising or marketing services, goods or other property for the professional supplier, or by a person in earlier links of the business chain, are to be treated as giving rise to a contractual obligation on the part of the professional supplier unless it did not know and had no reason to know of the information or undertaking. 317

Article 6.103 - Simulation 323

When the parties have concluded an apparent contract which was not intended to reflect their true agreement, as between the parties the true agreement prevails 324