Izvorni znanstveni članak
On the competition of the general conditions of contracts of two contractual parties
Vedran Šoljan
Sažetak
The author discusses the problem which arises because of the widely accepted practice of using general conditions of contracts in modern commercial transactions, which often results in a situation in which both parties try to incorporate their own general conditions into their contract. If all the other prerequisites for their incorporation have been met, the differences in solving general conditions of contractual parties open the question of whether the contract has been made at all and, if the answer is positive, of what its contents are? The article proposes three possible approaches to solve this problem which are dominant in individual legal systems. The first approach results from the classical model which demands complete harmonization in the manifestation of will of contractual parties which, in the case when contractual parties start fulfilling their obligations, leads to the conclusion on the incorporation of general conditions of the contract of the party which was the last to refer to the general conditions of the contract, excluding the general conditions of the other party. The second approach starts from the principle that the bidder is the party which has initiated the making of the contract, which means that the other party’s referring to the general contract conditions has no legal effect, and the contract is considered to be made, unless the party to which it is offered explicitly refuses the application of general conditions that the bid refers to. According to the third approach, if contractual parties start fulfilling their obligations, the contract is considered to have been concluded and its contents contain general conditions of both parties, but only in the section where they do not contradict each other.
A comparative overview includes the English, French and German legal practice, Dutch law, the analysis of the Article 207-2 of the American Uniform Commercial Code, solutions developed within the framework of the application of the Vienna Convention on Contracts for the International Sale of Goods, UNIDROIT Principles of International Commercial Contracts, Principles of European contract law, along with approaches found in Croatian legal literature.
Ključne riječi
general business conditons; existence of contract; content of contract; Croatian doctrine
Hrčak ID:
6432
URI
Datum izdavanja:
5.12.2006.
Posjeta: 3.296 *