Control of Price Related Terms in Standard Form Contracts : Spain

Abstract: The control of standard terms implies a significant inroad into classic contract theory as the fairness assessment moves from formation (procedural justice) to the content of contracts (substantial justice). When it comes to price terms, the challenge faces freedom of contracts and competition – two sources of undoubted interest for academics and practitioners. The chapter aims to present the status of the control of price related terms in Spanish law. It includes an introduction to the validity of standard form contracts in general and an analysis of content control in B2C contracts as the more far-reaching one. The assessment is not limited to statutory controls. Judicial activism has been significant in this field, as case law has defined unfairness criteria for specific types of contracts and ancillary terms. Additionally, courts have increasingly resorted to the requirement of transparency to control main price terms. The contours of the assessment of non-transparent terms and its consequences are not entirely defined nor homogenous, which brings about a relevant issue of legal certainty