Typical Clauses
A RTICLE 2.1.19
(Standard clauses)
1) The general rules relating to the formation of the contract apply when one or both parties use standard clauses, subject to Articles 2.1.20 to 2.1.22.
2) Standard clauses are the provisions established in advance by one of the parties for general and repeated use and effectively used without negotiation with the other party.
C OMMENTARY
1. Use of standard clauses in a contract
This article is the first of four articles (articles 2.1.19 to 2.1.22) which deal with the particular situation in which one or both parties use model clauses.
2. Concept of “standard clauses”
“Standard clauses” should be understood to mean the provisions established in advance by one of the parties for general and repeated use and effectively used without negotiation with the other party (paragraph
2). It is not the form in which they are presented that is decisive (for example, whether they appear in a separate document or in the contract itself; whether they have been pre-printed or whether they appear only in a file. electronic, etc.), neither who prepared them (the party itself, a trade or professional association, etc.) nor their volume (if it is a complete set of provisions covering almost all important aspects of the contract, or simply one or two provisions concerning, for example, exemption from liability or arbitration). The decisive aspect is that they have been established in advance for general and repeated use and that they are effectively used by one of the parties without negotiation with the other party.
3. Application of the general rules relating to the formation of the contract
Usually, the general rules on the formation of the contract apply regardless of whether the parties use standard clauses or not (paragraph 1). It follows that the standard clauses proposed by one party are binding on the other party only after acceptance, and that the question of whether the two parties must refer to the standard clauses expressly or whether the incorporation of these clauses may be implied depending on the circumstances of the case. Thus, the standard clauses appearing in the contract itself are usually binding from the signing of the contract as a whole, at least insofar as they are reproduced above the signature and not, for example, on the other side of the document. On the other hand, if the standard clauses are contained in a separate document or in an electronic file, the party intending to use them will usually have to refer to them expressly. Implicit incorporation can only be accepted if there is a practice established between the parties or a usage for this purpose.
See section 1.8.
I llustrations
1. B will conclude with a contract ‘ insurance covering the risk of liability for ‘ work accident A. Parties of employees sign a model contract presented by B after filling in the blank spaces relating, among others, the premium and the maximum insured amount. By its signature, A is bound not only by the terms that ‘ it individually negotiated with B, but also by the General Conditions of the ‘ National Association of insurers which are reproduced on the document.
2. A usually concludes contracts with its clients on the basis of its own standard clauses which are reproduced in a separate document. When making an offer to B, a new customer, A does not make specific reference to standard clauses. B accepts the ‘ offer. Standard terms are not part of the contract unless A can prove that B knew or should have known that A n ‘ had the ‘ intention to conclude the contract on the basis of its own standard terms, eg because that the same standard terms had regularly been adopted in d ‘ previous operations.
3. A wishes to buy grain on the London Stock Exchange. In the contract between A and B, broker of that exchange, no express reference n ‘ is made to the standard terms which normally govern brokerage contracts concluded in the stock in question. Standard clauses are nevertheless part of the contract because their application to this type of contract is customary.
