The knock out rule and the conflict of general standard forms

Abstract

The evolutions of the business practice to a more frequent utilisation of general standard terms have determined the emergence of special legal provisions aiming to solve the problems generated by this new reality as regards the formation and the content of contracts. It is the case for the Art. 1202(4) of the Romanian Civil Code, a text which imposes a modern solution to the battle of forms issue. Since the application of the traditional mirror image rule presents serious inconveniences when the parties are using general standard clauses (aspect approached in the first part of the article), the legislator took them into account and in 2011 he reacted by aligning the internal legal solutions to those largely followed in comparative and international law; the new rule – the elimination of the standard contradictory clauses / the knock out solution – is scrutinized in the second part of the article, which address in a more detailed manner the aspects of its application and functioning.