The Control of Contract Power and Standard Terms in Italy and Canada: A Comparative Overview

The essay firstly addresses the issue that can be summarized as “Control of Contract Power”. Secondly, it provides a general overview of Italian case law which shows the need for a substantive control on standard terms also when the adherent party cannot be characterized as a consumer; then it reports some related cases in common law jurisdictions. Thirdly, it deals with common law tools for this task and mainly with the unconscionability doctrine and its recent developments in Canadian common law. Fourthly, it considers recent amendments in civil law codes that support the thesis presented here, of finding guidance, in the (non)mandatory rules of the civil codes that define the subject matter of the particular types of contract, enabling an assessment of the fairness and enforceability of specific standard terms, in adhesion contracts, that do not abide by such rules.