The effects of unfair terms on the binding force principle of contracts 29
good faith is taken from German law, especially from the Law on general business
conditions from 9th December 1976 22 , being crystalized on the idea of an
“autonomous” interpretation of the good faith concept, identified and applied
according to the law and not according with the perspective given by each national
legal systems23. Thus, in the preamble of Directive 93/13/EEC it is stated that the
assessment, according to the general criteria chosen, of the unfair character of
terms, in particular in sale or supply activities of a public nature providing
collective services which take account of solidarity among users, must be
supplemented by a means of making an overall evaluation of the different interests
involved. This constitutes the requirement of good faith. Moreover, in making an
assessment of good faith, particular regard shall be had to the strength of the
bargaining positions of the parties, whether the consumer had an inducement to
agree to the term and whether the goods or services were sold or supplied to the
special order of the consumer. The requirement of good faith may be satisfied by
the seller or supplier where he deals fairly and equitably with the other party,
whose legitimate interests he has to take into account. Therefore, the simple
stipulation of unfair terms in the consummation contracts might be associated with
the idea of bad faith, which can be qualified, at its turn, as an illicit cause24,
sanctioned with absolute nullity25.
2.4. The “black list” criteria of abusive clauses
Besides the three criteria established in the unfair terms definition from article
4 paragraph 1 of Law no. 193/2000, the legal literature26 identifies a fourth one,
given that the law provedis a guiding non-exhaustive list, found in the annex,
which exemplifies the terms which might considered as unfair27. It should be also
mentioned that by simply enclosing a contractual term in the list from the annex to
22 See also, B. Jaluzot, La bonne foi dans les contrats. Étude comparative de droit français, allemand et
japonais, Dalloz, Paris 2001, p. 41, as cited by L. Pop, I.-F. Popa, S.I. Vidu, Tratat elementar de drept civil.
Obligaiile, op. cit, p. 167.
23 L. Pop, I.-F. Popa, S.I. Vidu, Tratat elementar de drept civil. Obligaiile, op. cit., loc. cit.
24 I. Fl. Popa, Reprimarea clauzelor abuzive, în Pandectele Române nr. 2/2004, op. cit., loc. cit.
25 According with article 1238 paragraph 2 of the Civil Code: “An illicit or immoral cause is
sanctioned with absolute nullity if it is commune or, on the contrary, if the other partie knew about its
existence or, should have known it”.
26 L. Pop, I.-F. Popa, S.I. Vidu, Tratat elementar de drept civil. Obligaiile, op. cit., p. 167.
27 The issue related to this criterion is if, once included in the list of unfair terms, a clause should
be automatically declared as unfair or not? Thus, from the point of view of transposing the directive,
the majority of Member States adopted the list as an exemplificative annex and not as an imperative
one (the gray letter rule), so that any term found in the annex shall be presumed as unfair, without
being automatically unfair (for example, France, Great Britain, Ireland and Poland). Other states
adopted an imperative list (the black letter rule), so that by simply putting a term in the list, it means
the term is considered as abusive (for example, Austria, Belgium, Greece, Luxembou rg). Finally, some
states (Germany, Italy, Portugal and Hungary) chose mixed transposal systems, both with black lists
and gray lists. See, L. Pop, I.-F. Popa, S.I. Vidu, Tratat elementar de drept civil. Obligaiile, op. cit., p. 167.