Kontrola klauzuli odpowiedzialności odszkodowawczej w obrocie gospodarczym

Abstract

In the process of contracting, autonomous corporate bodies take into account not only the value of their respective performances but also the distribution of risk of non-performance of their obligations. Among legal provisions regulating the contents of a competence norm of great importance is the principle of freedom of contract. It is connected with a postulate addressed to the legislator to use dispositive legal norms when determining the consequences of non-performance of obligations. The scope of freedom to shape the contents of liability clauses is determined by ius cogens on the one hand, and by institutions designed to verify such clauses on the other hand. To such institutions belong the norms contained in the Act on Counteracting Monopolistic Practices of 24 February 1990 (Official Gazette 1990, No. 14, item 88) and the norms referring to the principles of social coexistence and socio-economic purpose of a right. When applying the Act on Counteracting Monopolistic Practices one has to determine in what situations contractual liability clauses may be qualified as ''monopolistic practices" and in what way the balance between the interests of the parties may be restored. In turn, when referring to the general clauses of principles of social coexistence and socio- -economic purpose of a right one should bear in mind that the control must be in agreement with the model of market economy.