Impact of unfair contract term on binding power of the contract

Bibliogr. s. 69-70

The paper address the problem of influence by the unfair contract provisions on binding power of the whole contract. The author first concludes that binding of the parties by a contract is possible only if the remaining (fair) provisions form a contract, and therefor if they include at least the minimal provisions that result in consensus. Secondly, the elimination of the contested unfair provision from the contract cannot results in creation and binding power of legal relationship which would be forbidden by/unvalid under the law. Thirdly, since the unfair terms' statutory regulation is the implementation into the Polish law of the Article 6(1) of the Directive 93/13, therefore it should be interpreted in such a way, to ensure, as much as possible, the conformity of Polish regulation with EU legislation. The analysis of the case law of EU Tribunal of Justice and the Polish regulations result in the conclusion that the unfair term cannot be replaced by the dispositive statutory provisions, nor by any other substitutive/replacement means (e.g. constituent court judgments, mandatory statutory provisions, interpretative reduction of parties' statements) that could fill in the gap remaining after removal of the unfair clause. However such "substitutive measures" could and should be used (if provided by national law) only if when this could prevent the ineffectiveness/failure of the whole contract. This rule is applicable also to other "substitutive measures" than the dispositive statutory provisions, which in accordance with the national law would allow the effectiveness of the contract, following the restoration of the contractual balance, if such measures are in accordance with Directive 93/13. It was also accepted in the paper that the consumer cannot bind the court and contradict the use by the court of such a "substitutive measure" (e.g., the norm stemming out of the dispositive statutory provision) if its use could prevent the failure of the whole contract. The assessment, whether the contract can still be binding following the exclusion of unfair terms should be done by a court on the basis of objective criteria, independent for the will of an individual consumer.