Validity And Regulation Of Unilateral Modification Clause In Standard Form Contract

Unilateral change of terms clauses mostly appear in the credit card service agreement,e-commerce platform service agreement,insurance contract,telecommunication service contract and other standard contracts.From the perspective of law,merely the Electronic Commerce Law grants e-commerce platform operators rights to unilaterally change the service agreement and transactional rules.At theoretical level,author believes that only a continuing contract has the need to set such a clause.In addition,such clause is valid only if those contracts that clearly notify it,the clause itself does not violate the relevant provisions of contract law and the undertakings provide the existence of justifiable reasons.There is no uniform standard for the control of amended clauses' entering into the contracts.Some courts even recognize the validity of some notification methods,whic h fail to notice the third party re the contents of the amended articles.The author believe s that,with respect to the relevant indemnification clauses existing in the contract,the formulation party is generally required to remind the counterparty by bolding or other means that are sufficient to cause special attention of others in judicial practice;with respect to the clause that is incorporated in the contract during the performance thereof,the formulation party shall directly inform the counterparty of the changed clause by means of letters,e-mails,short messages,We Chat,etc.However,the indication of the modified terms merely guarantees that the counterparty has a full opportunity to review thecorresponding term but cannot guarantee that the counterparty has reviewed the term in substance.The theory of "informed minorities",which is put forward according to the market self-correction mechanism,cannot completely solve the no-reading proble m.The content control of the modified terms is subject to the regulation of current Contract Law Article 40.Moreover,in comparative law,the current regulation of the modified terms includes principles of reasonable expectation,principles of good faith,and the right to terminate the contract,etc.The right to terminate the contract is generally considered as one of the conditions to decide the validity of the modifie d terms.However,although the Electronic Commerce Law of our country also grants the counterparty the right to terminate the contract,it does not take it as a prerequisite of the validity of the modified terms.Similar treatment shall be accorded to similar situations.The counterparty to other standard forms of contracts shall also have the right to terminate the contract when the formulating party executes the unilateral change provisions.Seen from the legislator's purpose,Article 34 of the Electronic Commercial Law is not to restate the right to terminate a contract unilaterally in indefinite contracts,but to protect the counterparty from the unilateral modification clause.After all,one of the important tendencies of civil law is to grant more protection to the party who takes more risks in the transaction.It should be noted,however,that the right to terminate the contract should not be abused.If the party proposes to continue the original performance within a reasonable period,but the counterparty refuses,resulting in losses to the party,the counterparty shall be deemed to have breached the contract.