A recent decision of the Court of Justice of the European Union
(CJEU) has set limits on the ability of national courts to
intervene to save a contract which contains unfair terms.
Article 6(1) of the Unfair Contract Terms Directive (93/13/EEC)
(implemented in Ireland by EC (Unfair Terms in Consumer Contracts
Regulations) 1995), regulates contracts between consumers and
businesses. Unfair terms in consumer contracts must not be
binding on consumers but the contract will stand, if possible,
without the unfair term. Generally, a court may not rewrite a
contract by implying more reasonable terms into it. In Kásler and Káslerné
Rábai (Case C-26/13), the ECJ had ruled that, where a
consumer contract cannot continue in existence after an unfair term
has been deleted, the national court could cure the invalidity of
that term by substituting for it a “supplementary provision
of national law” if to annul the contract would have
unfavourable consequences for the consumer.
