Art. 70: The Duty to Raise Awareness of Not Individually Negotiated Contract Terms

Abstract

The present chapter analyses Art 70 CESL from the background of the PECL, the DCFR, and Italian law. A rule correspondent to the one contained in Art 70 CESL has been present in the Italian Civil Code for 73 years now. In fact, Art 1341 (1) CC can be seen as a precursor of Art 70 CESL. The latter rule seems to have enriched the Italian experience, namely the insufficiency of the signature to guarantee knowledge. It is submitted that the long experience of Italian legal scholars and practitioners with reference to the latter rule may be useful to highlight the positive and negative aspects of Art 70 CESL. This chapter concludes by pointing out the inadequacy of a protection based on the mere knowledge of the standard terms. A control relating to the content of the term is essential since, as the long Italian experience demonstrates, the signing party often concludes the contract nevertheless of the knowledge of the content of the unfair terms.