Contra Proferentem in the context of unfair contract terms

  • I.M. Gargat
Keywords: interpretation of the contract, unclear terms, content of the contract, freedom of contract, standard terms of the contract, unfair terms


The article examines the concept of contra proferentem, the problems of application and implementation of this concept, its role as a complex civil law principle. The genesis of the emergence and enshrinement of this principle in legislation, its place in modern international law (Directive 93/13 / EEC, UNIDROIT Principles), as well as in foreign civil codes (Civil Code of Georgia, Civil Code of Quebec).
Literal interpretation as a priority method does not always make it possible to identify the unambiguous content of the contract. The interpretation of the contract is relevant in connection with the further development of contract law, the emergence of new types of contracts, increasing the volume of civil contract texts, as well as to protect the weaker side of the contract. It is determined that the principle of contra proferentem is the interpretation of a disputed or contradictory condition of the contract in favor of the counterparty of the party who concluded the contract. It can be applied both in relations between business entities and with the participation of consumers.
As a result of the study of the principle of contra proferentem the author becomes clear his practical benefits. This principle will simplify the resolution of disputes arising from contracts in which the conditions are unclear and it is impossible to establish the true will with which the parties entered into legal relations. This principle will also simplify the process of will of the parties through a detailed study of the text of the contract, the negotiation process that preceded the conclusion of the contract, business correspondence, established practice and other problematic structures.
The application of the principle of contra proferentem in the field where consumers are opposed by professional institutions, in particular in the areas of contracts with banks, insurance companies and carriers, will create a positive trend to change the situation in favor of consumers in such agreements.
The author concludes that, in general, the method of interpreting a contractcontra proferentem is an effective tool for ensuring fairness in resolving contractualdisputes, in particular those caused by contracts with unfair terms.