Abstract
The discipline on the partial avoidance of a contract has significantly evolved over
the past few years in the European law.
The traditional position has been that when the contract is only partly lawful,
severance of the illegal promises is possible only if the preservation of the contract, once it is deprived of the illegal clause, does not alter the whole nature of the covenants (i.e
the economic meaning of the contract). If not, the whole contract is void.
However, this rule is clearly inadequate when the illegality of the contractual
clauses arises from the need to ensure protection of one of the contracting parties. In this
case it is always necessary that only the unfair terms are void (and so cut out) whereas
the rest of the contract stays valid.
In this context, both the law and the courts often limit the effects of the declaration
of illegality by disposing a « statutory severance » of lawful and illegal terms. This
solution, which is very common in the area of consumer contracts, ensures that the
contract, without the unfair terms, keeps its effects.
This paper aims to analyse the evolution of the treatment of partial invalidity, in the
light of the rules regulating the consumer contracts in the European countries (especially
after the Directive 93/13) as well as of the general rules on the partial avoidance
recently provided by the Roumanian Civil Code (2011), the French Project of reform of
the contract law (2014) and the Draft common frame of reference.
This article also studies the connections between the partial avoidance and the
ineffectivity of contract (or rule of « clause réputée non écrite ») as well as the effects of
the declaration of partial avoidance, which often could trigger the redrafting of the
contract by the judge.
Titolo tradotto del contributo | [Autom. eng. transl.] PARTIAL INVALIDITY, DEEMED WRITTEN CLAUSE AND CORRECTIVE INTEGRATION OF THE CONTRACT: PERSPECTIVES OF EUROPEAN LAW |
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Lingua originale | French |
pagine (da-a) | 901-921 |
Numero di pagine | 21 |
Rivista | REVUE INTERNATIONALE DE DROIT COMPARÉ |
Stato di pubblicazione | Pubblicato - 2015 |
Keywords
- illegal clause
- nullité partielle
- partial avoidance