Control of Price Related Terms in Standard Form Contracts in Croatia
Party autonomy or freedom of contract represents one of the main principles of any national contract law and the Croatian law is no different. There are, however, restrictions to this freedom, notably in the interest of consumers. One of the means to ensure that the contractual provisions are not to the detriment of consumers is the control of standard contract terms. General provisions on control of standard contract terms are provided for in the general law on obligations and it is applicable to all contracts, irrespective of the contracting parties. On the other hand, legislation on consumer protection provides for control of standard contract terms in consumer contracts and it is not surprising that the provisions therein are mirror image of the relevant EU legislation. In addition, control of standard control terms is afforded in special legislation on particular services.
Very generally, it may be stated that one of the principal mechanisms of consumer protection is the price disclosure and, even in broader terms, that the price related terms are clear and transparent. As to the control of these terms in standard contracts, so far scarce case law points out that in the course of assessing the price-related terms contained in the standard contract terms, the Croatian courts have not distinguished between main and ancillary terms affecting the price and every term which has an impact on a price is generally considered a price-related term. Thus, all the subject-matter and price related contract terms are treated equally and they are subject to an assessment against their unfairness only provided that these terms do not meet the transparency requirements.
The courts are competent to control standard contract terms, including the price related terms. However, besides them, the competence to control standard contract terms (including price related terms) in some special consumer contracts (e.g. in the sectors of energy, financial services and electronic communication) is given to the relevant independent regulators. There are significant disparities in terms of various aspects of this control (e.g. timing of control /ex ante or ex post/, personal scope of protection provided, power of entities which control standard contract terms, legal protection provided and legal effects of the decision of the competent body regarding the unfairness of a standard contract term).
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