ABSTRACT
An answer to the professional parties’ need of protection is suggested by the German legislation as well as by the Principles of European Contract Law: all parties, notwithstanding their position and their contractual strength, should be protected from unfair contract terms offered by their counterparties. This chapter describes and analyses critically this solution in practice as well as its theoretical justifications. It reaches the conclusion that regulation intervening so heavily on the parties’ contractual freedom does not offer an efficient answer to the question because it tends to stifle competition and to inhibit entrepreneurial initiative. Considering standard conditions only in terms of instruments of market regulation, it overlooks the real meaning they have for the predisposing parties: they are the fundamental means for allowing enterprise organisation. Moreover, entrepreneurial risk should not be annulled via protective measures. A more balanced solution is therefore preferable, providing a different solution for consumer contracts, business contracts between equal parties and business contracts with bargaining asymmetries. Procedural fairness should always be guaranteed, whereas rules positively promoting substantive fairness should only be enacted in cases where there are asymmetries in bargaining power.
