The Rules on Standard Terms in the Unidroit Principles: Misplaced and Misleading

Abstract

Joachim Bonell is an important role model for academic lawyers. I admire his enthusiasm and commitment to ensuring that his research makes a difference to business and practising lawyers. He has been extraordinarily influential in this respect. The explanation for his success is persistence, a strong sense of humour, emotion and a passion for tough debate. In his role as missionary for the UNIDROIT Principles he has engaged in discussions with everybody; important and unimportant, young and old, from any jurisdiction. He is not a cunning diplomat, quite the contrary. His charm, focus on the legal questions and his openness to the views of others carry him further than any servile flattery would. To honour Joachim Bonell, I will try to use his own method of presenting provocative ideas in a straightforward and passionate manner. I will dare to suggest a substantial revision of the UNIDROIT Principles, confident that he knows my strong support for the Principles in their current version and that my suggestion is intended only to make the Principles even better. Standard terms pose hard questions to the law. The fundamental problem is the lack of “real” subjective intention with respect to the content of the contract. The problem has been solved all over the world by acknowledging standard terms despite the lack of subjective intention. The UNIDROIT Principles do likewise, with special provisions in Articles 2.1.19-22. In this paper, I will draw attention to some shortcomings in the UNIDROIT structure. I will end with a proposal for an improvement in the next revision of the UNIDROIT Principles.