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The STUDIA UNIVERSITATIS BABEŞ-BOLYAI issue article summary
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Abstract: Factors that influence the development of adhesion contracts. Among the consumer contracts, the contract of adhesion is one of the most frequently used example of the consumer contract. George Rippert mentioned “in some agreements the position of the parties is as it follows: one of the party should oblige himself to execute the clauses which were imposed or drafted by another party. These agreements were named as contract of adhesion”. This category of contract, which was highly regarded in the doctrine only at the beginning of the XX-th century, has been esteemed as the main subject of many studies in doctrine. In addition, in our days, the existence of the contract of adhesion is not anymore debated. Some of the authors that researched this subject were J.Calais-Auloy, F.-Steinmets, they consider in general, that the contract of adhesion constitutes a reality of our society, despite the fact that this .exceptional. category was imposed by the necessities of the production and distribution of the products and services offered to the consumers.The agreement of adhesion is a consequence of the sale phenomena in large proportions, as is defined in the Directive no. 93/CEE .representing the picture of a lack of the direct negotiation concerning contract provisions. French doctrine upported the idea that the contract of adhesion represents the materialization of the economic power used excessively by the professionals. Nerveless, it has been established a presumption of the abuse regarding this type of contract, a presumption that could be rein versed by the proof that confirms the presence of the negotiations. For example, it was raised up the subject whether the contract of administration, might be considered - a contract of adhesion, due the fact that some of its clauses represents the object of a negotiation that had been carried over. The answer for this question might be found out in the regulations stipulated by the art. 3, par.(2), p. 2 of the Directive no.93/13/CEE regarding the abusive clauses in a consumer contract, which provides: “even though some aspects were assessment to a negotiation that had been carried over, it is not excluded the possibility of a pre-formulated standard contract, if this results from the evaluation of the content of its whole contract”. The lack of the negotiations, in these cases, is based on the fact that the consumer does not have always all the real tools to hold a negotiation, which means that this type of contract should be considered to be subscribed to the domain of the contract of adhesion.
Keywords: contract of adhesion, consumer, trader, unfair contractual clauses, good faith, loyalty, direct negotiation, imbalance
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