Protection of the weaker party in contract law: formation of the doctrine

Introduction: the doctrine of protection of the weaker party to contractual obligations is currently a focus of attention in modern civil law. Developing the doctrine, it is necessary to ensure the balance of interests of contracting parties as well as fairness and reasonableness of contractual terms in the light of the discretionary nature of contract law and the principles of freedom of contract and good faith of participants in civil law transactions. It is noted in the article that, regardless of the legal system (Russian or foreign), juridical science, as a conceptual teaching developed by civil law scholars and courts in course of the administration of law, influences the development of approaches to protection of the weaker party in contracts. The scholarly doctrine creates special legal schemes designed to protect weaker parties from the imposition of clearly onerous contractual terms: ‘procedurally unconscionable contracts’ (the United States, Great Britain and other similar national legal systems), ‘contracts of adhesion’ (France, Quebec, California), and ‘general contractual terms’ (Germany). The author of this article has studied rules of conclusion of adhesion contracts established in the reformed legislation of the Russian Federation. The judicial doctrine of ‘inequality of bargaining power’ and the analysis of its elements and facts to be proven, as developed in judicial practice of the US and Russian courts, are specifically addressed in the article. The author observes that neither in Russian nor in foreign contract law the doctrine of protection of the weaker party from the imposition of clearly onerous contractual terms in the context of inequality of bargaining power has been sufficiently clearly established so far due to the well-known difficulties of the description of good faith, reasonableness and fairness in positive law, difficulties in establishing their interpenetration and correlation with the autonomy of the will of participants in civil law transactions and with the freedom of contract. Purpose: to reveal modern trends in the formation of the doctrine of protection of the weaker party as a teaching about the correlation of moral, legal and economic categories in determining the balance of interests of contracting parties; to find, on the basis of a complex comparative study, the limits of judicial interference into the freedom of contract applied to ensure the autonomy of the will of the weaker party to a contractual obligation. Methods: the methodological framework of this article includes the methods of dialectics, deductive and inductive reasoning (as general scientific methods), and specific scientific methods, such as the historical method, the technical legal method, the method of formal logic, the comparative law method, and the method of systemic analysis. The techniques of logic and lexico-grammatical analysis have been used for comprehending specific legal schemes, definitions and categories. Results: it is noted that significant changes concerning protection of the weaker party have been made in Russian civil law, German and French codified law of obligations, as well as in English consumer law. The legal phenomenon of imposition of clearly onerous terms is regulated in Russia under the influence of the doctrine of protection of the weaker party to a contract, which is well-established both in the Romano-Germanic and the Anglo-American legal systems. The author concludes that the doctrine is based on the elements of inequality of bargaining powers, when contractual terms have been determined by one of the parties while the other party is in the position which significantly impedes the negotiation of a different substance of certain contractual terms. A significant bargaining inequality may result from the economic and actual inequality of the parties to the contract at the moment of its conclusion. At the same time, courts differ in their evaluation of the elements of unequal bargaining powers of the parties. The author’s proposals are related to the need to change the definition of the contract of adhesion by only preserving the criterion of inequality of bargaining power in the absence of individual negotiation of contractual terms, and to establish different standards of proof with due regard to the degree of the pre-existing inequality of bargaining power. Based on this doctrine, the weaker party must prove that the terms of the contract do not correspond to its reasonable expectations or that they are unfair or onerous to such party. The main elements of the doctrine of protection of the weaker party in contract law - its notion and influence on legal force of a contract - need to be further developed in theory and in practice.