Certain Problems Issue of Standard Terms – Freedom of Agreement and its Limits

Abstract

Freedom of contract can not be perceived without autonomy in content formation of the
agreement; Though, it is evident also, that the freedom at stake relates to all parties
concerned, as usually, the term contract is applied to mean at least bilateral expression
of wills. Real relations show that equality prescribed by the law is frequently limited due
to certain circumstances. One of the parties’ stronger position is also part of the range of
those circumstances and it may induce, “coerce” others to agree to the unilateral,
uncompromising terms offered. Such a practice concerns all societies with market
economy both in the sphere of consumer or other types of legal interaction. Usage of
standard terms is the most evident form to reinforce positions of stronger party through
contractual ties and the legislator is opposing this with the tool of good faith equipped
with additional features to confront abuse of power on different levels. Procedural and
substantive control mechanisms for standard terms are part of Civil Code since its
adoption based on realities of that time. Those realities as altered for now condition
existing mechanisms to appear as less adequate; due to internal systemic
inconsistencies and based on practical experience they seem no more convincing and
effective. The present essay attempts to show existing normatives form different angle
and through foreign practice background. This could be useful through the process of
implementation of European principles into Georgian law.