Regulating modern innominate contracts – how, why and when

Stanojević, Petra (2025) Regulating modern innominate contracts – how, why and when. In: Book of abstracts / (Central and Eastern European) network of jurisprudence (CEE)NJ annual conference. Univerzitet u Beogradu – Pravni fakultet Centar za izdavaštvo, Beograd, pp. 67-68. ISBN 978-86-6132-155-9

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Abstract

A great number of contracts is being conducted on a daily basis in modern time, most of which implicitly and often without the knowledge of contracting parties that they are, in fact, entering into a contract. With the development of technology, the whole process of conducting contracts has changed and law has the duty to follow these changes in order to protect people from any form of misuse. The main problem exists when conducting contracts via the internet, as these are mostly innominate contracts, and contracting parties more often than not have insufficient legal knowledge. Since these contracts are not specifically regulated by law, when there is any miscommunication between parties, they cannot be sure how the courts will interpret their contract and which norms will be applied. I have been researching this topic and am very interested in it so I’d like to present what I find to be the problem and the possible solution to it. I have identified a few contract types that will be discussed in the presentation. In this regard, I will talk about sponsorship agreement, influencer and brand ambassador contracts and more. I will briefly outline their basic characteristics, such as the contracting parties, main obligations and rights arising from the contracts, breach of contract and more. The purpose of a sponsorship agreement, on the one hand, is the transfer of image achieved through the association and linkage of the sponsor with the sponsored party. This can be accomplished through active promotion by the sponsored party (such as attending events, highlighting the business name, etc.) or passively, through the actions of the sponsor (such as using the sponsor's likeness, personal name, etc.). From the perspective of the sponsored party, the purpose lies in the financial benefit obtained, which is primarily used to further their activities (e.g., achieving success in tournaments). An influencer agreement is entered into by an influencer (an influential individual) with another party for the purpose of image transfer. A brand ambassador agreement is a contract wherein one party (the brand ambassador) undertakes to perform communication acts for the purpose of promoting the business name(brand), products, and services of another party (the sponsor). These communication acts may include creating and sharing content, attending marketing activities and events with the contracting party, granting rights to use the personal name, image, and other personal rights for promotional purposes, and other related activities. In return, the other party is obligated to compensate the brand ambassador and/or provide certain services. At the core of all these contracts is the transfer of image, a legal-economic term, which I will further explain during the presentation. Some authors theorize that the causa of these contracts lies in the image transfer. This adds to the difficulty of discussing their legal nature, particularly in a domain of the contractual liability of the parties. Specific question arise from this. In my presentation I will discuss whether, based on the fact that the causa lies in image transfer, it can be argued that the sponsored party could be liable if the transfer isn’t achieved. This would mean that this obligation is a performance-based obligation. The aim of my research was to present new institutes and types of contracts that have not yet been fully developed in the Serbian legal system and to analyse their legal nature. My thesis is that all three types of contracts presented, as well as similar relationships that exist in practice, have such significant similarities and minor differences that they could be considered the same type of contract and regulated in a unified manner. To substantiate this thesis, I will compare all three contracts in the following aspects: their purpose and the nature of contractual obligations. Finally I will present my opinion on whether these contracts should be subject to a unified regulation, and what are the potential issues in the future regulation

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