1. Markkinoiden juridinen toimintaympäristö Kalvot 2
Sopimusoikeuden yleinen teoria
Sopimusten synty
Tarjous – vastaus -malli
Poikkeava vastaus
Matti Rudanko

2. Functions of Contract Law 1
Defines if the parties have a binding contract and when the contract has been concluded
Invalidity grounds
Related to the legal capacity and legal subjectivity of parties
Related to misbehavior of the parties (Contracts Act)
Related to underlying assumptions of the contract (error in motivation + error in expression; Contracts Act)
Defines if the contract is valid
Especially in consumer protection law, regulation related to employment contracts and competition law
Restricts the content of the contract (+ other contractual freedoms, slide 9)
Markkinoiden juridinen toimintympäristö kalvot 2

3. Functions of Contract Law 2
Defines the breaches of contract by a party and legal remedies of the counterparty for that
Contractual regulation helps when these conditions are not met: Transactions are trouble-free, if all participants
are aware of their preferences and features of the products available
can freely decide about their commitments and terms of contract and
act according to the contract.
Markkinoiden juridinen toimintympäristö kalvot 2

4. What Is a Contract? Legal view:
Two expressions of will with the same content unite
agreement = contract
Bilateral legal act vs. unilateral legal act
Pacta sunt servanda = agreements must be kept
Business administrative view:
Contract is an instrument to implement business decisions
A means for risk management
The collection of contracts is part of a company’s assets
Economic view:
Net benefits gained from contractual arrangement is positive
Markkinoiden juridinen toimintympäristö kalvot 2

5. Contract Types Markkinoiden juridinen toimintympäristö kalvot 2
Individual contract - standard contract
Single contract – long-term contract
Contracts between:
Entrepreneur – consumer (B2C)
Entrepreneur – Entrepreneur (B2B)
Consumer – Consumer (C2C)
Different forms:
Oral
Specified form (written, with witness, notary)
Markkinoiden juridinen toimintympäristö kalvot 2

6. Who is allowed to conclude contracts?
Legal subjects: have rights and obligations/may gain rights and become obliged
Natural persons (from birth to death)
Legal persons (from establishment to dissolution)
Legal capacity: a person can conclude legal acts with contractual validity (legal persons only by agents)
Natural persons: full legal capacity: at least 18 years old
Lack of legal capacity
Court has limited one’s legal capacity
Diminished responsibility (drunkness, illness)
Legal incapacity = the court has declared one to be legally incompetent or one is under 18 years old
Markkinoiden juridinen toimintympäristö kalvot 2

7. Who Is Allowed to Conclude Contracts?
Allowed legal acts of legally incompetent person
An incompetent person may enter into transactions which, in view of the circumstances, are usual and of little significance
An incompetent person has the right to decide on the proceeds of his/her own work earned during the Incompetency
Right to manage the assets that the guardian has given him
A 15-year-old person is allowed to enter into/terminate an employment contract
Markkinoiden juridinen toimintympäristö kalvot 2

8. About Contractual Legislation 1
Private Autonomy (freedom of contract) -> freedom to decide about:
Form and contents of contract
With whom one makes a contract
Rescission (cancellation / termination) of contract
Central laws regulating contracts
Contracts Act 1929 (partly mandatory): How a contract is concluded, invalidity and adjustment of contracts, authority
Sale of Goods Act 1987: Duties and rights of seller and buyer (non-mandatory)
Consumer Protection Act 1978 (mandatory)
Special legislation related to some contracts: housing, employment contract, insurance contract
Markkinoiden juridinen toimintympäristö kalvot 2

9. About Contractual Legislation 2
Private autonomy + legislation -> Statute hierarchy:
1. Mandatory law (usually limits the freedom of contract)
2. Contract
3. Established practice between parties, commercial customs
4. Non-mandatory law
Example: disagreement about delivery time:
1. Existence of mandatory law? No.
2. What says contract? Nothing.
If the parties haven’t agreed anything about delivery time, non-mandatory law defines the delivery time
Example: Sale of real estate: Oral contract
1:existence of mandatory law? Yes. Code of Real Estate: written contract and notarial attestation
The contract is invalid.
Markkinoiden juridinen toimintympäristö kalvot 2

10. Role of General Principles
General principles of contract law
Can be found from preworks, jurisdiction, precedents and statutes
E.g.
Contracts are binding
Loyalty (solidarity) towards the other party
Economic rationality
No fixed priority order
Significance of general principles
Interpretation of law
When no law regulating the matter exists
Markkinoiden juridinen toimintympäristö kalvot 2

11. Limitations of Freedom of Contract
Mandatory legislation to protect common good or the weaker party:
Exception from Freedom to decide about form:
Sale of real estate: form requirement not met invalidity of contract
All form requirements in Finnish law consist of demand for written contract + possibly public notary/witness
Exception from Freedom to decide about content:
Labour law, consumer law: protection of the weaker party
Contracts/terms considered to be against good manner
The position of third party,
Contracts’ inconformity with competition law
Adjustment of contracts
Markkinoiden juridinen toimintympäristö kalvot 2

12. Limitations of Freedom of Contract 2
Obligation to contract (exception from freedom to choose contracting party)
necessities or goods/services related to everyday life (Water, electricity, mail, bank account
usually obligation of state-owned companies)
Controlling position in the market
misuse of controlling position is prohibited
compensation for damages if company refuses to make a contract
Public procurement (states, municipalities buy services and goods from companies):
the most profitable one must be chosen
Prohibition of discrimination
Criminal Code
Non-discrimination act
Employment contracts act
Markkinoiden juridinen toimintympäristö kalvot 2

13. On Permanence of Contracts
Possibilities to terminate the contract (main rule: pacta sunt servanda)
Cancellation of contract (grounds in contractual legislation): serious breach of contract
Notice (Long-term contracts)
Freedom of notice main rule
Freedom limited for the protection of the weaker party
Regulation on procedures, grounds and periods of notice (rent, employment relationship)
Freedom of notice can also be extended for securing a fair exit to the weaker party
As a rule, parties can agree on procedures, grounds (e.g. changes in conditions) and periods of notice
Contract is invalid (Contracts act Ch. 3:duress, inappropriate persuasion etc.)
Adjustment of contract (Contracts Act Sect. 36, e.g. changes in conditions)
Markkinoiden juridinen toimintympäristö kalvot 2

14. On Permanence of Contracts 2: Possibilities to Alter the Terms of the Contract:
Main rule: Unilateral alteration not possible (exception: special agreement on right of alteration )
Parties may agree about altering terms
Renegotiation- and hardship –terms entitle to multi- or unilateral alteration
Parties agree that only a third can alter terms
Implied altering (consent by silence or contributing behavior)
Court can alter an unreasonable term (adjustment)
Markkinoiden juridinen toimintympäristö kalvot 2

15. Conclusion of Contract
Conclusion types according to Contracts Act (1929)
Offer- Acceptance (and auction)
Other types
In Finnish law a contract is established if a consensus is reached about engaging into a contract and contents of the contract
Contract negotiations: consensus reached step by step, not at once (cf. offer – acceptance –model)
Contracts based on circumstances: parking, public transport
Implied contract: cooperation between parties which indicates that contractual relationship exists but difficult to trace when or how the contract is concluded.
Markkinoiden juridinen toimintympäristö kalvot 2

16. Offer-Acceptance -Model 1
Offer (given by the Offeror) and Reply/ Acceptance (given by the Offeree)
The Offer must be formulated in a way that the offeree is able to answer “yes” or “no” to the offer
Binding nature of an offer: the offeree has the option of concluding the contract by answering “yes”
The binding force of the offer starts when the offer has come to the offeree’s attention.
Markkinoiden juridinen toimintympäristö kalvot 2

17. Offer-Acceptance -Model 2
Validity time of the offer:
The acceptance must reach the offeror during validity time, limited by
the offer
The Contracts Act: the acceptance shall reach the offeror within a reasonable time
An offer made orally without granting a fixed time for acceptance shall be accepted immediately;
unless an immediate acceptance is given, the offer is considered rejected
Markkinoiden juridinen toimintympäristö kalvot 2

18. Offer-Acceptance-Model 3
Acceptance (“Yes”) that reaches the offeror on time (agreed / reasonable time / oral->immediately)
Concludes the contract
Negative answer (”No”)
Binding nature of offer lapses
No contract
No answer during the validity time of the offer
Binding nature of the offer lapses
Positive answer (”Yes”) different from the offer
new offer
Binding nature of the original offer lapses
By accepting the new offer the original offeror concludes the contract
Positive answer (”Yes”) arriving late
Markkinoiden juridinen toimintympäristö kalvot 2

19. Offer-Acceptance-Model 4
Contracts Act: “A reply that purports to be an acceptance but which, due to an addition, restriction or condition, does not correspond to the offer, shall be deemed a rejection constituting a new offer. ”
Contracts Act: ”An acceptance that reaches the offeror too late shall be deemed to constitute a new offer made by the original acceptor.”
Markkinoiden juridinen toimintympäristö kalvot 2

20. Offer-Acceptance-Model: Exceptions
Effect of a deviant reply shall not apply if the offeree has considered the reply to correspond to the offer and the offeror must have understood the same.
If the offeror in that case does not wish to accept the reply, he/she shall, without undue delay, notify the offeree thereof;
otherwise a contract shall be deemed concluded on the terms contained in the reply
Deviant reply
the real will of the offeree deviates from the offer
Cf. error in expression
Answer (expression of will) deviates from the real will of the offeree
a) resulting in an erroneously positive answer
may constitute an invalidity ground (Contracts Act S. 32)
b) resulting in an erroneously deviating answer:
ordinary rules on deviant replies apply (unless the offeror should have noticed the error -> binding contract?)
Markkinoiden juridinen toimintympäristö kalvot 2

21. Offer-Acceptance-Model: Exceptions
Effect of a late reply shall not apply if the acceptor has assumed that the acceptance has reached the offeror within due time and the offeror must have understood the same.
If the offeror in that case does not wish to accept the acceptance, he/she shall, without undue delay, notify the acceptor thereof;
otherwise a contract shall be deemed concluded by way of the acceptance
Markkinoiden juridinen toimintympäristö kalvot 2

22. Cf. The International Regulation
Unidroit Principles article (and CISG art. 19: Modified acceptance)
(1) A reply to an offer which purports to be an acceptance but contains additions, limitations or other modifications is a rejection of the offer and constitutes a counter-offer.
(2) However, a reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance,
unless the offeror, without undue delay, objects to the discrepancy. If the offeror does not object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance.
Markkinoiden juridinen toimintympäristö kalvot 2

23. The International Regulation, Cont.
Unidroit Principles article (and CISG art. 21: Late acceptance. Delay in transmission)
(1) A late acceptance is nevertheless effective as an acceptance if without undue delay the offeror so informs the offeree or gives notice to that effect.
(2) If a communication containing a late acceptance shows that it has been sent in such circumstances that if its transmission had been normal it would have reached the offeror in due time, the late acceptance is effective as an acceptance
unless, without undue delay, the offeror informs the offeree that it considers the offer as having lapsed.
Markkinoiden juridinen toimintympäristö kalvot 2

24. Offer-Acceptance -Model 5
REVOCATION OF AN OFFER OR ACCEPTANCE (Contracts Act S. 7)
An offer or an acceptance that is revoked shall not be binding, if the revocation reaches the person to whom it is addressed before, or at the same time as, the offer or acceptance comes to his/her attention
Revocation is possible also later if the parties have so agreed
Markkinoiden juridinen toimintympäristö kalvot 2

25. Offer-Acceptance-Model 6
OTHER ISSUES: Distinguishing binding offer and mere preparation of contract:
Offeror’s desire to bind himself,
Expressions must be clear and detailed enough so that the offeree can decide about her commitment,
Expressions have to be directed to limited group of people.
Marketing advertisements:
Not considered as binding offers but rather invitations to make offers.
Markkinoiden juridinen toimintympäristö kalvot 2

26. Standard Terms 1 Markkinoiden juridinen toimintympäristö kalvot 2
Term collection, drawn up beforehand
Intention to use the collection in multiple contract relations
Function: to minimize transaction costs, uniform contractual practices
Different kinds of standard terms:
Standard terms drafted unilaterally
Standard terms drafted bilaterally (agreed documents)
Standard terms drafted by company/entrepreneur and confirmed by public officer (in Finland the Consumer Ombudsman)
The need to protect the counterparty varies in these situations
Markkinoiden juridinen toimintympäristö kalvot 2

27. Standard Terms 2 Markkinoiden juridinen toimintympäristö kalvot 2
Protection of the other party – goals
enhancing the level of awareness about the content and consequences of standard terms, especially in case of unilaterally drafted terms
compensating the imbalance between parties:
Protection of the other party - in which respects and with which criteria
Criterium 1: How the standard terms are attached to the contract
Criterium 2: Demand to highlight strict and surprising terms
Markkinoiden juridinen toimintympäristö kalvot 2

28. Attaching the standard terms to the contract – valid alternatives:
1. Standard terms are included in the same contract paper that is used
2. Web-based trade: buyer must read and approve standard terms before ordering
2. Contract paper refers to the terms and states them to be applied
Prerequisite: Adverse party must have had an opportunity to explore the content of the standard terms = Adverse party must be aware of where he/she can explore the terms or the terms have been presented to him/her beforehand
Markkinoiden juridinen toimintympäristö kalvot 2

29. Standard Terms 4 Markkinoiden juridinen toimintympäristö kalvot 2
Attaching the standard terms to the contract (cont.)
3. Standard terms become part of contract due to commercial or contractual practice, especially when
1) standard terms are formed together by both parties (“agreed documents”) and when
2) same standard terms have been used before by parties.
Strict and surprising terms
Demand to highlight -> How?
What is a non-strict term:
Comparison with non-mandatory law and general principles in contract law
If non-strict term didn’t appear among terms, the balance of obligations wouldn’t change
Markkinoiden juridinen toimintympäristö kalvot 2