In this legal bulletin, we shall briefly address the principle of protection of the weaker party, since it is precisely due to this principle that the regulation of the new Civil Code (hereinafter referred to as the “NCC”) contains a number of provisions which cannot be agreed upon with the weaker party.
At the outset, it must be noted that the regulation of the NCC does not contain a specific definition of the institute of the weaker party and it is therefore not clear at this time which subjects may find themselves in the position of the weaker party. The practical consequences of this legal regulation are thus not entirely predictable at this time. The application of this principle is intended to correct the factual (e.g. economic or intellectual) inequality between the parties in legal relationships, and no specific definition could encompass all possible cases of such factual inequality.
According to the authors of the NCC, the principle of protection of the weaker party has become an inseparable principle of modern private law and is particularly prominent at present in the area of consumer law. Throughout the entire NCC, however, not only consumers are protected, but also minors, employees, tenants, patients, victims of domestic violence, etc.; furthermore, protection is provided, for example, in the regulation of adhesion contracts (adhezní smlouvy), usury or the new institute of gross disparity (neúměrné zkrácení).
However, this principle is most prominently manifested in the regulation of obligatory relationships and it is therefore necessary to determine the weaker party in each individual contractual relationship on the basis of the circumstances which influenced the formation of that contractual relationship, typically whether the contracting party had the possibility to influence the content of the contractual relationship and furthermore the knowledge and experience of the contracting party concerned. It may therefore also occur that in a specific contractual relationship neither of the parties will be the weaker party.
Most generally, the principle of protection of a contracting party is enshrined in the provision of Section 3(2)(c) of the NCC, which provides that “no one may suffer undue harm due to lack of age, reason or the dependence of their position, but neither may anyone unjustifiably profit from their own incapacity to the detriment of others”. Its more specific expression is then Section 433(1) of the NCC, which provides that “a person who acts as an entrepreneur towards other persons in business dealings must not abuse their quality as an expert or their economic position to create or exploit the dependence of the weaker party and to achieve manifest and unjustified inequality in the mutual rights and obligations of the parties”. This provision forms the basis for the regulation of consumer protection in Part Four of the NCC (Section 1810 et seq.), although it does not target only consumers, even though it might appear so. At the same time, paragraph 2 establishes a rebuttable presumption that “the weaker party is always a person who acts towards an entrepreneur in business dealings outside the context of their own business activities”. An entrepreneur may therefore prove in a specific case that, although they are dealing with a non-entrepreneur, this does not constitute a weaker party in that case. Likewise, however, a non-entrepreneur may prove that they are the weaker party.
As regards the specific regulation relating to e-commerce, the principle of protection of the weaker party is manifested prominently, for example, in the provisions of Sections 1811, 1820 or 1843 of the NCC regulating the information obligation of the entrepreneur, Section 1814 of the NCC, where prohibited stipulations between an entrepreneur and a consumer are established, further by the extension of the period for withdrawal from a contract where the consumer has not been informed of this right in Section 1829(2) of the NCC, or in the provision of Section 1753 of the NCC, which provides that a provision of terms and conditions which the other party could not reasonably have expected is ineffective unless that party has expressly accepted it. Furthermore, the provisions of Sections 1799 and 1800 of the NCC will also be very important. Section 1799 of the NCC specifically provides that “a clause in a contract concluded by way of adhesion which refers to conditions stated outside the actual text of the contract is valid if the weaker party was acquainted with the clause and its meaning or if it is proved that they must have known the meaning of the clause”. The regulation of so-called adhesion contracts then continues with Section 1800 of the new Civil Code. Its paragraph 1 establishes that “where a contract concluded by way of adhesion contains a clause which can only be read with particular difficulty, or a clause which is incomprehensible to a person of average understanding, such clause is valid unless it causes harm to the weaker party or the other party proves that the meaning of the clause was sufficiently explained to the weaker party”. Determining what stipulation is comprehensible to a person of average understanding may not be entirely straightforward. Paragraph 2 then provides that “where a contract concluded by way of adhesion contains a clause which is particularly disadvantageous to the weaker party without there being a reasonable ground for it, in particular where the contract deviates seriously and without special reason from the usual conditions stipulated in similar cases, the clause is invalid…”.
As follows from the above, the principle of protection of the weaker party permeates the entire NCC, and in practice we shall encounter this institute very frequently.
Barbora Chvalinová
Law Office Mašek, Kočí, Aujezdský www.e-Advokacie.cz – on-line legal counselling
This text was originally prepared by the law office Mašek, Kočí, Aujezdský in cooperation with the association Association for Electronic Commerce (APEK) as legal bulletin No. 12/2013 intended for members of that association.
This text was translated from Czech to English using an AI translator.