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b2b terms rundown 2 a status quo to economic risk in contracts?

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04/12/2020
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Under the new b2b law there is a (rebuttable) presumption of unfairness for clauses that place, without compensation, the economic risk on a party, where that risk is normally borne by another party to the contract.

Presuming that a contract is unfair because it derives from what is “normal” is not quite beneficial for legal security (what is a “normal” risk allocation in any type of contract?) And is confirming embedded “normality” a guarantee for fairness?

Moreover, the allocation of economic risk is often at the heart of a contract. How should one apply the “no compensation” test without examining the actual equivalence between obligations, which is precisely what should not be examined under the fairness test of the b2b law.

It can be expected that courts will have some apprehension to annul shifts of economic risk based on this vague presumption, given its potentially far reaching impact on business cases.

As a precaution businesses will probably clarify that (and how) risk allocation has been taken into account in the financials. More paperwork, not necessarily beneficial to anyone.

These short #b2btermsrundown posts randomly identify topics of the new b2b law.

Don't hesitate to reach out to Olivier Vanden Berghe should you have any questions.