新合同法 has been in force in France since October 1, 2016. Many articles in the French Civil Code were amended or even completely repealed as part of the reform. New articles that reflect applicable case law were newly included in the Civil Code.
For all contracts concluded prior to this date, the old Civil Code will essentially continue to apply (with the exception of new articles 1123, (民法典第1158和1183条).
The reform of 合同法 in France has a major impact on all contracts 和, consequently, on the 一般条款及细则 in international business transactions. A new article has been included in the Civil Code specifically to deal with this matter.
一般条款和条件法国
正如已经提到的, a new article was introduced into the Civil Code as part of the new 合同法 reform. Under article 1171 of the Civil Code, in the case of a so-called “Contrat d 'ahesion”的子句 严重不平衡 between the rights 和 obligations of the parties to the contract are considered not to have been written. A “contrat d 'adhesion” 是当, under article 1110 of the Civil Code, the contractual clauses are determined in advance by only one party unilaterally, 比如在使用 一般条款及细则. 因此, in order for this provision to apply, the contractual clauses must not have been negotiated or amended jointly.
It is the jurisdiction of the individual judge to determine whether or not there is a 严重不平衡 when considering each individual case. It is to be assumed that the judge will follow previous French case law regarding article L. 442 – 6 of the Code de Commerce, at least in the case of contracts between merchants. Consequently, for example, in the case of distribution contracts, 付款期限过长, unilateral 价格 amendment clauses, unilateral penalty clauses 和 unilateral termination clauses without notice periods or compensation would be judged by the courts to constitute a 严重不平衡 (e.g. Cour d’appel de Rouen, 12 décembre 2012 n° 12 01 200 or Cass. Com 3火星2015,n°14 10 907).
In the case of article 1171 of the Civil Code, it is a matter of a so-called “范围公开” provision, 和 thus m和atory French law, which is not subject to the parties’ discretionary powers. This applies even if the user of the 一般条款及细则 is based abroad, as for example in the case of internet firms whose 一般条款及细则 和 their consequences are, 然而, 打算在法国应用 (Tribunal de Commerce de Paris 7 mai 2015, n° 2015000040).
Explicitly excluded from article 1171 of the Civil Code is a possible imbalance in the case of 一般条款及细则 with regard to the primary purpose 以及 价格 (also see article 1168 of the Civil Code in this respect). 结果是, in the case of 一般条款及细则, these are not subject to judicial control 和 cannot, 因此, 被判定为没有写. However, in turn, it is not m和atory to apply this in the case of contractual relationships between merchants, where more specific provisions in the Code de Commerce also prohibit any possible imbalance between performance 和 价格 (see article L 442 – 6 of the Code de Commerce).
In the case of 一般条款及细则, difficulties interpreting the contractual clauses are always to the disadvantage of the user (article 1190 of the Civil Code). This rule of interpretation had already been used by French case law prior to the 合同法 reform (卡斯. 3文明. 2013年10月29日n°12 22 498).
例外:
本规定不适用于 一般条款及细则 used between merchants 和 consumers. 在这种情况下, the much more stringent 和 more specific provisions of French consumer law apply (above all article L. 132-1 et seq of the Code de la consommation).
Another exception can be found when 新情况出现 after the contract has been signed that lead to an imbalance in the contractual relationships 和, 在德国, are covered by the concept that the basis of the transaction has ceased to exist. 在这种情况下, the more specific provisions of article 1195 of the Civil Code apply.
The provision of article 1171 of the Civil Code also only applies in the case of contractual obligations 和 not in the case of 合同语句 without any further contractual consequences.
更具体地说 第L条的规定. 商法典第442 - 6条, which applies to contracts between merchants, 不, 然而, replace the general provision of article 1171 of the Civil Code, but rather is applied simultaneously.
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