Division 2
Standard Terms
- 35. Definition of standard term
(1) A contract term which is drafted in advance for use in standard contracts or which the parties have not negotiated individually for some other reason, and which the party supplying the term uses with regard to the other party who is therefore not able to influence the content of the term, is deemed to be a standard term.
(2) It is presumed that standard terms have not been negotiated individually in advance.
(3) Standard terms may be embodied in a contract or form a separate part of a contract. Standard terms may be terms of a contract regardless of the scope of the terms, the manner in which the terms are expressed in the contract or the form in which the contract is entered into.
(4) The general provisions for entering into contracts apply to entering into contracts with standard terms unless otherwise provided for in this Division.
(5) Agreements which derogate from the provisions of §§ 35 to 39 or 41 to 45 of this Act to the detriment of the party with regard to whom the standard terms were applied are void.
- 36. Application of provisions
(1) The provisions of this Division do not apply to contracts concerning relationships under the law of succession or family law or to contracts for the foundation of companies, other legal persons and civil law partnerships, or for the management thereof.
[RT I, 04.02.2011, 1 – entry into force 05.04.2011]
(2) If the other party to a contract with standard terms is a consumer whose residence is in Estonia or in a Member State of the European Union and the contract was entered into as a result of a public offer, advertisement or other such activity in Estonia or the contract is essentially related to the territory of Estonia for any other reason, the provisions of this Division apply even if the place of business of the party supplying the terms or, if no place of business exists, the residence or seat of such party is not in Estonia, regardless of which state’s law is applicable to the contract.
(3) If the parties to a contract with standard terms act for purposes relating to their economic or professional activities and their places of business related to the contract or the performance thereof are in Estonia, the provisions of this Division apply to the contracts entered into between them regardless of which state’s law is applicable to the contract.
[RT I 2003, 78, 523 – entry into force 27.12.2003]
- 37. Standard terms as part of contract
(1) Standard terms are part of a contract if the party supplying the standard terms clearly refers to them as part of the contract before entering into the contract or while entering into the contract and the other party has the opportunity to examine their contents. Standard terms are also part of a contract if their existence could be presumed from the manner in which the contract was entered into and the other party was given the opportunity to examine their contents.
(2) The parties may, taking into account the provisions of subsection (1) of this section, agree in advance that standard terms apply to certain types of contracts.
(3) Standard terms the contents, wording or presentation of which are so uncommon or unintelligible that the other party cannot, based on the principle of reasonableness, have expected them to be included in the contract or which the party cannot understand without considerable effort are not deemed to be part of the contract.
- 38. Standard terms and individual agreement
If the content of a standard term contradicts a term individually agreed upon by the parties, the term individually agreed upon applies.
- 39. Interpretation of standard terms
(1) Standard terms shall be interpreted according to the meaning that reasonable persons of the same kind as the other party would give to them in the same circumstances. In the case of doubt, standard terms shall be interpreted to the detriment of the party supplying the standard terms.
(2) A standard term which is void shall not be interpreted such as to give it content by which the term is valid. If a term can be divided into several independent parts and one of them is void, the other parts remain valid.
- 40. Conflicting standard terms
(1) If, upon entering into a contract, the parties each refer to their own standard terms, the contract is deemed to have been entered into under the terms which are not in conflict with each other. The provisions of law concerning the type of contract concerned apply in lieu of any conflicting terms.
(2) In the case of conflicting standard terms, the contract is not deemed to have been entered into if one party has explicitly indicated before the contract is entered into or without delay thereafter and not by way of the standard terms that the party does not deem the contract to have been entered into. A party does not have this right if the party has performed the contract in part or in full or has accepted performance by the other party.
- 41. Validity of contract with standard terms
If a standard term is void or is deemed not to be part of the contract, the rest of the contract is valid unless the party supplying the term proves that such the party would not have entered into the contract without the standard term which is void or is deemed not to be part of the contract. The provisions of law concerning the type of contract concerned apply in lieu of such terms.
[RT I 2003, 78, 523 – entry into force 27.12.2003]
- 42. Invalidity of standard terms
(1) A standard term is void if, taking into account the nature, contents and manner of entry into the contract, the interests of the parties and other material circumstances, the term causes unfair harm to the other party, particularly if it causes a significant imbalance in the parties’ rights and obligations arising from the contract to the detriment of the other party. Unfair harm is presumed if a standard term derogates from a fundamental principle of law or restricts the rights and obligations arising for the other party from the nature of the contract such that it becomes questionable as to whether the purpose of the contract can be achieved. Invalidity of standard terms and the circumstances relating thereto shall be assessed as at the date of entry into the contract.
[RT I, 04.02.2011, 1 – entry into force 05.04.2011]
(2) A standard term is not deemed to be unfair if it relates to the main subject matter of the contract or to the relationship between the price and the value of the services or goods supplied in exchange or if the contents of the term is based on such legislation which must not be derogated from pursuant to an agreement between the parties.
[RT I, 04.02.2011, 1 – entry into force 05.04.2011]
(3) In a contract where the other party is a consumer, a standard term is considered to be unfair if, in particular, the term:
1) precludes the liability arising from law of the party supplying the standard term or restricts such liability in the case where the death of the other party or damage to the health of the other party is caused or in other cases where damage is caused intentionally or due to gross negligence;
2) precludes the use of legal remedies of the other party vis a vis the party supplying the terms, including the opportunity to set off claims, or unreasonably restricts the use thereof in the event of the party supplying the terms fails to perform the contractual obligation or performs it improperly, including delays the performance;
[RT I, 04.02.2011, 1 – entry into force 05.04.2011]
3) precludes or unreasonably restricts the other party’s right arising from law to refuse acceptance of performance of an obligation and to refuse performance of the party’s obligations in the case of a mutual contract, especially if the right to refuse is made subject to admittance of a deficiency by the party supplying the term;
4) [repealed – RT I, 04.02.2011, 1 – entry into force 05.04.2011]
5) prescribes that the other party shall, in the event of non-performance of the party’s obligations, pay an unreasonably high contractual penalty to the party supplying the term or an unreasonably high predetermined amount of compensation for damage or other compensation, or the other party is deprived of the opportunity to prove the actual size of the damage;
6) restricts the obligation of the party supplying the term to perform obligations undertaken by a representative of the party or makes performance of the obligations of such party subject to compliance with a particular formality on unreasonable grounds;
7) prescribes that a third party is liable for non-performance of the obligations of the party supplying the term;
8) precludes or restricts rights which the other party could exercise pursuant to law with regard to a third party if the rights arising from the contract to the party supplying the term transfer to such third party;
9) prescribes an unreasonably short term for the other party to submit claims, including an unreasonably short limitation period for claims arising from the contract or law;
10) deprives the other party of the opportunity to protect the party’s rights in court or unreasonably hinders such opportunity from being exercised;
11) unreasonably restricts the other party’s right to use evidence or imposes on the party a burden of proof which, according to law, should lie with the party supplying the term;
12) prescribes that, in the event of a breach of the contract by the party supplying the term, the other party may exercise the party’s legal remedies against the party supplying the term only if the other party has previously filed a claim against a third party with a court;
13) prescribes that performance of the obligations of the party supplying the term is made subject to a circumstance the occurrence of which depends on the party’s will alone, at the same time as the other party undertakes an obligation which is binding on the party regardless of such circumstance;
14) prescribes the right of the person supplying the term to alter the terms or conditions of the contract unilaterally for a reason or in a manner not provided by law or specified in the contract;
15) prescribes that the party supplying the term has the right to determine or increase the price of a movable or service at the time of delivery of the movable or provision of the service without the other party having the right to terminate the contract, except in cases where such terms are lawful terms for price indexation and expressly prescribe the method of adjusting the price;
16) provides the party supplying the term with a unilateral right to deliver a movable without good reason or provide a service with characteristics other than those agreed upon;
17) provides the party supplying the term with the right to unilaterally determine whether the movable delivered or service supplied or the performance of any other obligation is in conformity with the terms and conditions of the contract;
18) provides the party supplying the term with the exclusive right to interpret the contract terms;
19) provides the party supplying the term with the right to unilaterally determine the term for the performance of the party’s obligations or prescribes an unreasonably long or unspecified term for the performance of the obligations of the party supplying the term;
20) [repealed – RT I, 04.02.2011, 1 – entry into force 05.04.2011]
21) prescribes the obligation of the other party to make an unreasonably large advance payment before the party supplying the term performs the obligations thereof;
22) provides the party supplying the term with the right to require security of unreasonably high value;
23) prescribes the obligation of the other party to accept goods or services which were not ordered in addition to the goods and services agreed upon;
24) prescribes the obligation of the other party to enter into another contract with the party supplying the term or a third party, unless entry into such other contract is reasonable taking into account the relationship between such contract and the contract with standard terms;
25) provides the party supplying the term with the right to transfer the rights and obligations thereof arising from the contract to a third party without the consent of the other party where this may serve to reduce the likelihood of the contract being performed;
26) precludes or unreasonably restricts the right of the other party to assign claims;
27) prescribes that, at the end of the term of a contract for a specified term, the contract is automatically extended for a period exceeding one year without the other party making a corresponding request;
28) prescribes that a contract for a specified term is extended at the end of the term if the other party does not give notice of the opinion of the party with regard to the extension of the contract at an unreasonably early time before the end of the term;
29) provides the party supplying the term with the right to terminate the contract without giving reasons for the termination if the same right is not provided to the other party;
30) prescribes that, upon unilateral termination of the contract by the party supplying the term, the party may refuse to refund the sums paid by the other party for obligations which the party supplying the term has not yet performed, or the party supplying the terms is permitted keep the money paid by the other party if the other party does not enter into or perform the contract, and if the other party is not prescribed as large a compensation in the event the supplier of the term does not enter into or perform the contract;
[RT I, 04.02.2011, 1 – entry into force 05.04.2011]
31) prescribes an unreasonably long term of advance notice for the other party to terminate the contract;
32) prescribes an unreasonably short term of advance notice for the party supplying the term to terminate the contract;
33) provides the party supplying the term with the right to terminate a contract entered into for an unspecified term without good reason and without a reasonable period of advance notice;
34) [repealed – RT I, 04.02.2011, 1 – entry into force 05.04.2011]
35) prescribes that declarations of intent are to be made in a manner other than that provided by law and this causes harm to the other party, except where such specification applies to the format of the declaration of intent of the other party or unless it is prescribed that the party supplying the term may deem the address given thereto by the other party to be correct until the party supplying the term is notified of a new address;
36) enables the party supplying the term to make use of an unreasonably long or insufficiently determined term for acceptance or refusal of an offer;
37) prescribes that, upon performance or non-performance of a particular act, a declaration of intent of a party is deemed to have been made or not to have been made, unless the party supplying the term undertakes to specifically notify the other party of the consequences of the other party’s conduct and gives the other party a reasonable term for confirming the declaration of intent.
- 43. Specifications concerning credit institutions
(1) The terms specified in clause 42 (3) 14) of this Act is not deemed to be unfair for the other party if a credit institution or other supplier of financial services reserves the right under the standard terms to alter, with good reason and without advance notice, the rate of interest or other charge for financial services to be paid by the other party or to the other party, on the condition that the credit institution or other supplier of financial services is required to immediately inform the other party or other parties of such alteration and that the other parties have the right to terminate the contract immediately.
(2) The terms specified in clause 42 (3) 14) of this Act is not deemed to cause unfair harm to the other party if a credit institution or other supplier of financial services reserves the right under the standard terms to unilaterally alter the terms of a long-term contract without a good reason specified in the contract if alteration of the terms is not unfair with regard to the other party and if the credit institution or other supplier of financial services undertakes to give advance notice to the other party of any alteration of the terms and to grant the other party the right to terminate the contract immediately.
- 44. Contracts relating to economic or professional activities
If a standard term specified in subsection 42 (3) of this Act is used in a contract where the other party to the contract is a person who entered into the contract for the purposes of the economic or professional activities of the person, the term is presumed to be unfair.
- 45. Requirement to terminate application of unfair standard terms
(1) A person or body provided by law may, pursuant to the procedure provided by law, require that a party supplying an unfair standard term terminates application of the term and that the person recommending application of the term terminates and withdraws such recommendation.
(2) The requirement specified in subsection (1) of this section may be filed, inter alia, by a non-profit association whose objectives as specified in the articles of association thereof include protection of the rights of undertakings or persons engaged in professional activities and who is actually able to protect these interests resulting from the organisation and financing of the activities thereof.
(21) The non-profit association specified in subsection (2) of this section may submit a claim for termination of the use of the contract terms or practices concerning such term of payment, penalty for late payment or compensation for collection costs or recommendation for the use thereof which, based on the circumstances, are grossly unfair with regard to the obligee. Such claim may also be submitted in the case of an individually agreed term.
[RT I, 05.04.2013, 1 – entry into force 15.04.2013]
(3) The provisions of the second sentence in subsection 39 (1) of this Act shall not apply upon settlement of the requirement provided for in subsection (1) of this section.
[RT I 2008, 59, 330 – entry into force 01.01.2009]