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  • Publication
    Einseitige Änderungsklauseln ain Allgemeinen Geschäftsbedingungen
    (Universität St. Gallen, 2022-09-19)
    In modern mass commerce, unilateral adaptation clauses in standard terms have become indispensable. They represent a recognized and proven means of granting flexibility to users of standard terms in the drafting of contracts in view of the unpredictability of the future. In order to effectively meet their need for flexibility, users of standard terms usually define the contractual prerequisites as well as the scope of unilateral adaptation clauses in a highly open manner. These undefined adaptation rights in presumably unread standard terms can thus prove to be very burdensome for consumers, which, in Swiss doctrine, has earned them the vivid metaphor of a «Trojan Horse». Against this background, this dissertation examines the control of unilateral adaptation clauses in standard terms under Swiss law. The focus lies on standard terms in consumer contracts given that the main instrument for content control under Swiss law, Art. 8 of the Swiss Federal Act on Unfair Competition, only applies to consumer contracts. In the main part of the discussion, the study also relies on a comparative law analysis with the German law on standard terms. Such a comparative law approach is indeed suited because the German legal system has already known differentiated legal provisions for the control of standard terms since 1977. Furthermore, German law offers an abundance of case law and literature particularly in the area of unilateral adaptation clauses in standard terms. Aiming at a holistic approach, this study concludes by addressing difficulties in connection with the law enforcement of unilateral adaptation clauses embedded in standard terms. In doing so, it analyzes whether the existing procedural framework under Swiss law is suited to promote the law enforcement in the sphere of standard terms or if additional instruments for collective redress are necessary in this area.