(Some) Contractual Aspects of Unfair Competition

The author tried to elaborate on the issue whether an invalid contract term could be also considered unfair commercial practice or a violation of rules on unfair competition which could be enforced not only by the contractual party, but also by competitors. In accordance with the recent Austrian and German case-law the author pleaded for the applicability of general clause of unfair commercial practices on breach of consumer contracts regulation (unfair term). Thereby a void contractual term (unfair term) may fulfill the criteria set for an unfair commercial practice. However, not every conflict with mandatory contract law regulation fulfills the criteria of unfair commercial practices or unfair competition in general as the applicability of the general clause – whether within unfair competition or unfair commercial practices – is to be tested in concreto.
In order to equal a violation of the regulation on contract law to a violation of the regulation on unfair commercial practices or unfair competitions, the nullity of a contractual stipulation should fulfill at least following criteria. The contract law rule which was violated had to address the commercial behavior of the party, its violation had to have an economic impact on the competitor and shall not be directed solely towards the contractual parties and their protection. Moreover, the general clause of unfair commercial practices requires a breach of professional diligence. Not every violation of contract law regulation shall be sufficiently relevant to establish a violation of professional diligence (i.e. if the unfairness of a contractual stipulation has yet not been settled by case-law nor legal science). The same should apply to the general clause of unfair competition.