EVALUACIÓN FISICOQUIMICA

It could be argued that there is no exact coincidence between the proffering party’s offer and the adhering party’s acceptance if the contract contains unfair terms. The acceptance is partial and does not reflect his genuine contractual will to be bound by the unfair terms. However, from a pure legal perspective, once acceptance is expressed and communicated to the offeror, it becomes binding regardless of whether the offeree accepts or refuses the unfair terms. What matters the most is the manifestation of the contractual will even though there might be a conflict between his internal will and external will.²¹⁸

2.3.3 The mechanism used to conclude adhesion contracts  

The contracting model of contracts of adhesion is characterized by the exclusive dominance of one contractual will which dictates the terms of the agreement and its means of formation. The role of the second contractual will is merely to complement this will by abiding by its conditions so that the contract can be created. The second will is not allowed to influence the content of the contract nor discuss it. This absence of ability to negotiate compels it to accept all the contract terms, including terms that are detrimental to its interest.

The code lacks preventative measures that are aimed at controlling the stronger party’s behaviour by forbidding him from abusing his right to contract and drafting the contract to his benefit. Apart from Art. 39 KCC, which provides that "the offer must describe at least the nature of the contract and its essential conditions", there is no other provision in the code that sets general minimum standards on contract drafting.²¹⁹ The code leaves it completely up to the proffering party to determine the substance, form and

218 The rationale behind the code reliance on the external will of the contracting party to determine his   acceptance lies in considerations relating to the stability of transactions in the market and protection of the other party’s expectations and trust. For a discussion of the internal and the external will in the Kuwaiti law see Ibrahim Abu Allail, pp. 94–98; in general, see Abd-Alrazzaq Al-Sanhuri, pp. 110–114; Solaiman Murkus, pp. 143–151; Anwar Sultan, pp. 58–60.

219 With the exception of its regulation of insurance contracts in Art. 782 in which the insurance company is required to display certain terms distinctively and in intelligible manner, such as those relating to invalidation or arbitration, the code lacks any other guidance on how terms should be drafted. Regulation of style in this article proves that control of contract drafting within the code is the exception.

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y engage.

style of the contract. By failing to regulate the matter, this law fails to prevent unfair contracting practices in which professionals ma

Two examples can be offered to illustrate the insufficiency of the rules to control procedural unfairness in adhesion contracts. The first concerns abuse of the contract language in the form of using complex or ambiguous wording for the ordinary members of the public. While the code in Art. 82 lays down the contra proferentem rule, which provides that any ambiguities in the contract shall be construed in favour of the adhering party, it does not set a pre-contractual duty on the author of the terms to use plain and intelligible language or at least proscribe him from obscuring the meaning of the terms.

The court is allowed to construe the terms in favour of the adhering party only if they are susceptible to different meanings but not when they are complex and incomprehensible.

Professionals may obscure the meaning of the terms by using complex language that is incomprehensible to the lay person who will ultimately fail to draw accurate conclusion as to their scope or legal implications.

The second illustration concerns binding the adhering party to terms that he did not have the opportunity to review by incorporating these terms into the agreement by reference. If the stronger party refers in the original document of the contract to other documents that were not readily available before contracting and the adhering party signs the original document, then his signature binds him to the incorporated terms even if he did not read them. The general rule in contract formation mandates that reception or signing the document is a strong presumption of acceptance but, in fact, this assumption does not accord with the reality in adhesion contracts in many situations.²²⁰ Nevertheless, the law regards his acceptance in the form of signature or the mere reception of the contract

220 Ibrahim Abu Allail, 179; Ahmad Al-Refai, p. 51. Cf the notion of constructive consent in US law, see   John JA Burke, ‘Contract as Commodity: A Nonfiction Approach’ 24 Seton Hall LegisJ 285, p. 296 et seq.;

English law attaches great importance to signatures. The general rule is that a party is bound by his signature regardless of whether he has read the contract or not so long the party took reasonable steps to bring the terms to his attention (Parker v South Eastern Railway [1877] 2 CPD 416), or whether he understands the terms, see L'Estrange v Graucob [1934] 2 KB 394; see also, JR Spencer, ‘Signature, Consent, and the Rule in L’Estrange v. Graucob’ 105 CambLJ, p. 114.

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document to be sufficient to indicate his knowledge of the terms and establish their binding force.²²¹

The law in other jurisdictions sought to mitigate the effects of incorporation of terms by setting a minimum requirement for the standard terms to become obligatory for the adhering party. In Germany, for instance, section 305c(1) of the BGB invalidates unreasonable terms if the drafting party fails to provide the adhering party with an adequate notice as to their existence before the conclusion of the contract.²²² Section 305(2), too, requires that in order for a standard business condition to form part of the contract, the user must be given a reasonable opportunity to take note of the contents.

A further illustration is the indicative list of the Directive. It enumerates a number of terms that are presumed to be unfair between consumers and businesses. Among them is point (i), which refers to a term that is "irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract". Similarly, the UNIDROIT Principles of International Commercial Contracts²²³ provide a significant exception to the general rules of consent in contract formation in standard agreements through the codification of the principle of "surprising terms".²²⁴ If a surprising term has been included in a standard agreement, which the adhering party could not reasonably have expected, then it would be held ineffective, unless it has been expressly accepted by the adhering party.

The rationale behind these exceptions is to prevent the drafting party from sneaking terms in without the knowledge of the adhering party²²⁵ and "to avoid a party which uses standard terms taking undue advantage of its position by surreptitiously

221 Ahmad Al-Refai, p. 50.  

222 BGB section 305c(1) reads: "provisions in standard business terms which in the circumstances, in particular with regard to the outward appearance of the contract, are so unusual that the other party to the contract with the user need not expect to encounter them, do not form part of the contract". Translation of this provision is provided in Hugh Beale and others, p. 783.

223 The official text of the UNIDROIT Principles and comments can be accessed through

http://www.unidroit.org/english/principles/contracts/principles2010/integralversionprinciples2010-e.pdf

224 Art. 2.1.20.

225 Thomas Wilhelmsson and Chris Willett, p. 171. The scope and application of this exception varies from one jurisdiction to another.

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attempting to impose terms on the other party which that party would scarcely have accepted had it been aware of them".²²⁶

Any reform of the present control system of unfair terms in the context of adhesion or consumer contracts should take into account the implementation of these rules.

Their establishment is certainly necessary to overcome the procedural unfairness in adhesion or consumer contracts to ensure that the proffering party took reasonable steps to bring the terms to the attention of the adhering party. They represent a starting point on which other rules can be built to address the adhering party’s weakness and ensure his informed consent prior to the formation of the contract.

The section that follows attempts to suggest some solutions that the researcher believes could contribute to effective protection against procedural unfairness and the abuse of contract practice.

2.3.4 Suggestions on how to overcome the procedural problems associated with