UNFAIR CONTRACT TERMS AND SMEs IN BW AND DRAFT CC OF SERBIA

Abstract

This article is inspired by the ever-growing literature on the protection of weaker parties to contractual relations emphasizing that consumers are not the only weaker parties which should be protected. It is submitted that SMEs lack the bargaining power, expertise or suffer from information asymmetry in contractual relations in the same way as consumers do. In this article, the author chose to analyze the position of SMEs when it comes to policing of unfair standard contract terms, as it is repeated that the protection against unfair contract terms is a paradigm of weaker party protection. The article compares the way in which the control of unfair contract terms is regulated in the BW and in the DGZ. The pros and cons regarding the categorical protection of SMEs against unfair terms were explored, and two conclusions were reached. First, the benefits of categorical protection of SMEs outnumber the drawbacks. Second, BW is more in line with the arguments that are given for the protection of SMEs than DGZ, and DGZ could draw some inspiration in this area from BW.