Adjustment of an unfair contract term Sample Clauses

Adjustment of an unfair contract term. By virtue of Section 36 of the Finnish Contracts Act (228/1929, as amended, in Finnish: laki varallisuusoikeudellisista oikeustoimista), a provision in an agreement may be adjusted or set aside (by a court) if the provision is considered unreasonable or if the enforcement of such provision would lead to an unreasonable result. The wording of the relevant section is: If a contract term is unfair or its application would lead to an unfair result, the terms may be adjusted or set aside. In determining what is unfair, regard shall be had to the entire contents of the contract, the position of the parties, the circumstances prevailing at and after the conclusion of the contract, and to other factors. If a term referred to in paragraph 1 is such that it would be unfair to enforce the remainder of the contract after the adjustment of the term, the rest of the contract may also be adjusted or declared terminated. A provision relating to the consideration shall also be deemed a contract term. When determining the question of whether a provision is unreasonable or not, a court shall, according the Contracts Act, evaluate the agreement as a whole, the relationship between the parties and the circumstances during which the contract was made and those prevailing thereafter. Generally, a provision considered unreasonable under the Contracts Act is modified only to such an extent as to make the contractual relationship balanced and reasonable. Therefore, neither the contract nor the provision as such is usually void, but only amenable until a level of balance and fairness is reached. We note that the ISDA Master Agreements are governed by either New York, English law, French law or Irish law. This means that, in principle, Finnish law would not apply to the ISDA Master Agreements. However, regardless of the choice of law provision in the ISDA Master Agreement, in the event that the ISDA Master Agreement were brought before Finnish courts, Section 36 of the Contracts Act might, due to its mandatory nature, be applied to the ISDA Master Agreement. We are of the opinion that it is not likely that the ISDA Master Agreements would be subject to adjustment or set aside under Section 36 of the Contracts Act. This opinion is based on the fact that the principle of contractual freedom is the basic rule in Finnish contract law, and the adjustment by a court under Section 36 of the Contracts Act, is, in practice, unusual. Under Section 36 of the Contracts Act, Finnish courts have t...
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Related to Adjustment of an unfair contract term

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