Filozofska istraživanja, Vol. 42 No. 1, 2022.
Izvorni znanstveni članak
https://doi.org/10.21464/fi42106
Freedom of Contract in the Context of Contracts of Adhesion, with the Emphasis on Online Contracts
Dubravka Klasiček
orcid.org/0000-0001-6230-5203
; Sveučilišta Josipa Jurja Strossmayera u Osijeku, Pravni fakultet Osijek, Stjepana Radića 13, HR–31000 Osijek
Sažetak
In the 21st century, we live in what can be called a “new normal” when we view law through the prism of digital technology. Technology has greatly impacted the traditional parts of civil law, such as law of ownership, inheritance and contracts. Technology is bringing civil law into a new, digital environment where it is necessary to consider the specifics of that environment. The freedom of contract is the basic principle of civil law, which is mainly applied in the law of obligations, in the part concerning contracts. In contrast, adhesion contracts are contracts in which the terms are dictated by one party, while the other party can only accept or reject them – take it or leave it. In the context of adhesion contracts, it is clear that freedom of contract can be violated in certain cases. Nowadays, a large number of such contracts are concluded online. Every user of a website must agree to these contracts in order to use that website. The problem of the lack of choice of the person who agrees to the pre-announced conditions in such adhesion contracts may be more pronounced online than in classical adhesion contracts. Due to certain characteristics of such contracts, users are sometimes not even aware that by their mere behaviour they have agreed to the terms and conditions of the Internet service provider (ISP) to which the website belongs. As a result, these users do not know what they have agreed to until problems arise between them and an ISP. The behaviour of the contracting parties certainly contributes to this problem. ISPs sometimes try to turn most of the provisions of the contract in their favour and diminish their importance, while users ignore this and agree to everything that is offered to them, sometimes not even knowing that they have given their consent.
Ključne riječi
party autonomy; adhesion contracts; online adhesion contracts; Internet Service Provider (ISP); browsewrap; clickwrap
Hrčak ID:
281086
URI
Datum izdavanja:
17.7.2022.
Posjeta: 3.380 *