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Fervers, Matthias and Gsell, Beate (2020): Control of Price Related Terms in Standard Form Contracts in Germany. In: Control of Price Related Terms in Standard Form Contracts, Vol. 36: pp. 405-427

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The question whether or not a price-related term can be subject to a fairness test is highly debated in Germany. The judiciary differentiates between principal and ancillary price terms;only ancillary price terms shall be subject to a fairness test. However, the results of this approach are at least partly unconvincing. A preferable approach is presented by parts of the academic literature: the decisive measure is whether a free-market competition can be established with regard to the respective clause. Only if this is the case a fairness test is not justified since there is no reason for a judicial control of a decision based on freedom of contract.

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