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Scope
The LCP governs consumer transactions and practices addressing
consumers. Accordingly, it is understood that Art. 5 regulates con-
sumer contracts and the unfair terms therein.
An important innovation under the LCP is defining the scope of
applicability of Art. 5 based on the counterparty of consumer contracts.
Pursuant to Art. 5/5 LCP, the fact that the drafting counter party of the
consumer contract operates under permission granted by law or by rel-
evant authorities shall not prevent the applicability of the LCP provi-
sions. Thus, in the event there are unfair terms in adhesion contracts,
contracts executed with persons providing water, communication, elec-
tricity, gas or similar goods and services, such terms shall also be sub-
ject to the provisions of the LCP
7
.
Evaluation of the Unfairness of a Term
Art. 5 LCP regulates the method of evaluating whether a contract
term is unfair or not. Accordingly, the unfairness of a contract term
shall be determined based on the time of execution of the contract. The
characteristics of the relevant good or service, the conditions present at
the time of execution, and the provisions of the contract as well as
other relevant contracts shall be taken into consideration in determin-
ing the unfairness. As explained above, there is an unfair term in the
presence of an imbalance between the parties which is not coherent
with the good faith principle; thus the LCP enumerates certain criteria
which need to be taken into consideration when assessing such imbal-
ance. As it is stated in the legislative justification, a contract term may
be individually regarded as unfair, but when taking the contract as a
whole, it may be accepted as fair.
In short, all these data should be taken into consideration in deter-
mining whether there is an imbalance between the parties as of the date
of execution of the contract. In the event of an imbalance occurring
after the date of execution, such imbalance shall not be regarded with-
in the scope of Art. 5 LCP, but, if the conditions are met, within scope
of the rebus sic stantibus principle instead.
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Justification, m. 5/5.