Legal Literature

Unfair Contract Terms Directive, Article 3

The author gives an overview of the Austrian and German case law regarding the definition of clause and comes to the conclusion that there is a lot of uncertainty. In the opinion of the author, clear structures would be necessary due to the prohibition to reduce a clause to its legally permitted core. In this context the "blue pencil rule", stating that only crossing through of inadmissible text in a clause shall be permitted but no other changes made by the judge, is discussed. The author deems this rule not helpful regarding the definition of clause but sees it as an additional tool with an indicative effect.