Every group that trades in Montenegro sends its general terms with the order, and every Montenegrin supplier sends its own back with the confirmation. When I am asked, two years later, which set governs the dispute, the answer under Montenegrin law is rarely the one either side assumed. The Law on Obligations has an explicit regime for contracts of adhesion and general terms: they bind if they were published in the usual way and were known or should have been known to the other party at contracting, specially agreed terms prevail over them, unclear terms in a document one party prepared are read against that party, and a court may strike or refuse to apply terms that defeat the purpose of the contract, offend good business customs, deprive the other party of its objections or are excessively harsh. The same Law also contains what most systems lack, a written rule on acceptances that change the offer, which decides the battle of forms by statute rather than by doctrine. This page sets out those rules from the text and turns them into drafting for the side that wants its terms to bind and the side that wants to keep the other's out.
Sources, checked 11 September 2026. Law on Obligations (Official Gazette of Montenegro 47/08, 4/11, 22/17, 123/24 and 94/26), Articles 25 to 38, 60, 95 to 99, 136 to 138, 272 and 383; Law on Deadlines for Settlement of Monetary Obligations (113/2024), Article 8.
Contracts of adhesion and general terms: Articles 136 to 138
Article 136 defines a contract of adhesion, or form contract, as one in which one party determines the elements and conditions of the contract in advance through a general and standing offer, the general terms, and the other party merely accedes to it. Article 137 gives general terms their force and their limits: they supplement the special terms agreed between the parties in the same contract and, as a rule, bind like them; they must be published in the usual manner; they bind a party if they were known or should have been known to it at the time of contracting; and where general terms and special terms conflict, the special terms prevail. Article 138 gives the court two powers. Provisions of general terms that are contrary to the very purpose of the contract or to good business customs are void, even where the general terms were approved by a competent authority. And the court may refuse to apply individual provisions that deprive the other party of the right to raise objections, cause it to lose rights under the contract or to lose deadlines, or are otherwise unfair or excessively strict towards it. The test of Article 137(3), known or should have been known at contracting, is more forgiving to the drafter than the Turkish disclosure test, but it is still a test applied to the moment the contract was made: terms first sent with the invoice, or first published after the order, were not known when it counted.
Interpretation: Articles 95 to 99
Article 95 provides that contract terms apply as they read and that disputed terms are interpreted by seeking the common intention of the parties rather than the literal meaning of the words; Article 96 fixes that intention by what one party actually declared and how the other had to understand it, or, failing that, by what reasonable persons of the same kind would have intended in the same situation, and binds a party to the meaning it knew the other party intended. Article 97 lists the circumstances that count: the circumstances of conclusion, prior negotiations, the parties' conduct after conclusion, the nature and purpose of the contract, the interpretation they applied to similar terms, the practice established between them, the usual meaning of terms in the trade, and good faith. Article 98 is the rule for standard terms: where a contract was concluded on a pre-printed text, or was otherwise prepared and proposed by one party, unclear provisions are interpreted in favour of the other party. Article 99 adds that unclear terms in an onerous contract are read in the sense that achieves a fair relationship between the mutual performances.
| Question | Montenegrin rule | Article |
|---|---|---|
| When do general terms bind? | If published in the usual manner and known or knowable to the other party at contracting | 137(2) and (3) |
| Conflict between general terms and negotiated terms | Negotiated terms prevail | 137(4) |
| Terms contrary to the purpose of the contract or good business customs | Void, even if approved by an authority | 138(1) |
| Terms removing objections, rights or deadlines, or excessively strict | Court may refuse to apply them | 138(2) |
| Unclear term in a document one party prepared | Read in favour of the other party | 98 |
| Price list or catalogue | Invitation to make an offer, not an offer | 28 |
| Acceptance with non-material changes | Acceptance, unless the offeror objects at once; contract on the changed terms | 36(2) and (3) |
| Acceptance changing price, payment, quality, quantity, delivery place or time, or extent of liability | Rejection and counter-offer | 36(1) and (4) |
| Silence of the offeree | Not acceptance; a clause deeming it acceptance is void | 37(1) and (2) |
| Standing business relationship for specified goods | Offer deemed accepted unless refused at once or within the period | 37(3) |
How the contract is formed: Articles 25 to 35
An offer under Article 25 is a proposal to a specified person containing all the essential elements of the contract; where the parties agreed the essential elements and left secondary points for later, the contract exists and the court settles the secondary points by reference to the negotiations, the practice between the parties and usage. A proposal to an indeterminate number of persons with the essential elements counts as an offer under Article 26, and goods displayed with a price count as an offer under Article 27, but under Article 28 catalogues, price lists, tariffs, other notices and advertisements are only an invitation to make an offer on the published conditions, and the sender answers in damages if it refuses the resulting offer without good reason. Under Article 29 the offeror is bound unless it excluded that obligation or the circumstances exclude it, and may revoke only if the revocation reaches the offeree before or with the offer; Article 30 sets the binding period; Article 31 requires an offer, and its acceptance, to be in the form the law prescribes for the contract. Article 32 makes a written offer binding although signed by an unauthorised person where four conditions meet: it is on the offeror's business stationery, it bears the offeror's stamp and is signed in the usual way, it concerns business the offeror regularly conducts within its normal scope, and the offeree did not know the signatory was unauthorised. Article 33 requires an offer or acceptance made by telephone or telegram to be confirmed by registered letter by the next working day; the absence of confirmation does not affect validity but makes the party that omitted it liable for the resulting loss. Under Article 34 an offer is accepted when the offeror receives the declaration, or when the offeree sends the goods, pays the price or does another act that the offer, the practice between the parties or usage treats as acceptance. Under Article 35 an offer to a present person, including by telephone or direct radio link but not by fax, lapses unless accepted at once.
The battle of forms: Articles 36 to 38
Article 36 is the Montenegrin battle of forms rule. An offeree who accepts and at the same time proposes a change or addition has rejected the offer and made a counter-offer. A reply that accepts with additions or changes that do not materially alter the offer is an acceptance, unless the offeror objects at once, and if it does not, the contract is concluded on the terms of the acceptance. An alteration is material where it concerns the price, payment, the quality or quantity of the goods, the place and time of delivery, or the extent of one party's liability to the other. Article 37 provides that the offeree's silence is not acceptance and that a clause in an offer deeming silence, or a failure to return goods, to be acceptance has no effect, with two exceptions: where the offeree is in a standing business relationship with the offeror for specified goods, an offer for such goods is deemed accepted unless refused at once or within the period allowed; and a person who offered to execute another's orders, or whose business includes executing such orders, must perform an order unless it refused it at once, the contract being concluded when the order reached it. Article 38 treats a late acceptance as a new offer, save that an acceptance sent in time and arriving late concludes the contract unless the offeror promptly gives notice that it no longer considers itself bound. Put together, these articles give a concrete answer to two colliding sets of terms: where the second set changes a material point, including any liability cap, it is a counter-offer, and the party that then delivers or pays has accepted it by conduct under Article 34; where it changes only immaterial points, the contract exists on the second set unless the first sender objected at once. The last set of terms before performance therefore usually wins, and the way to avoid that result is to object at once, in writing, every time.
Terms that fail whatever the forms said
Some clauses do not survive even a clean incorporation. Article 272 voids an advance exclusion of liability for intent or gross negligence and lets the court annul an exclusion for ordinary negligence that came from a monopoly or an unequal relationship, as set out on the limitation of liability page. Article 8 of the Law on Deadlines for Settlement of Monetary Obligations voids contract terms on payment periods, default interest and compensation for recovery costs that are manifestly unfair to the creditor, and treats the exclusion of default interest as unfair in every case, as set out on the late payment page. Article 277(3) voids a penalty on a monetary obligation, on the penalty clauses page. And Article 138 itself removes terms that defeat the contract's purpose or strip the other party of objections and deadlines, which is where a foreign template's short claim windows, deemed acceptance clauses and unilateral change rights usually end.
Form, amendments and signatures
Article 60 provides that contracts need no form unless the law prescribes one, that a statutory form requirement extends to later amendments and additions, and that later oral additions on secondary points and oral agreements reducing or easing a party's obligations are valid where the form was prescribed only in the parties' interest. A supply or service contract between companies therefore needs no form, and an exchange of emails, orders and confirmations concludes it, subject to who signed: Article 32 binds a company to an offer on its letterhead signed by an unauthorised employee within the normal scope of its business, and Article 94 treats persons whose work consists of concluding and performing particular contracts, such as counter staff, as authorised for those contracts. Which electronic signatures satisfy a written form under the electronic identification and trust services law is set out on the electronic signatures page.
Drafting for the supplier who wants its terms to bind
Publish the terms in the usual manner and prove it: on the website, in the price list, in the framework agreement. Send them, or a link and a copy, with every quotation, not with the invoice, so that Article 137(3) is met at contracting. Put the terms that matter, the cap, the payment period, the claim window, the forum and the governing law, in the body of a framework agreement the customer signs, so that they are special terms that prevail under Article 137(4) rather than general terms that yield. Write clearly, since Article 98 reads every ambiguity against the drafter. Answer any purchase order carrying the customer's own terms at once, in writing, rejecting them under Article 36, and do not deliver until the point is settled. Remove deemed acceptance clauses, which Article 37(2) voids, and terms that shorten claim windows or remove objections, which Article 138(2) invites the court to ignore.
Drafting for the buyer who wants to keep them out
State in every order that the supplier's general terms do not apply and that delivery is accepted on the buyer's terms only; under Article 36 the supplier's confirmation with its own terms is then a counter-offer that the buyer must reject at once, in writing, rather than by taking delivery. Refuse to sign a framework agreement that attaches the supplier's terms, or sign it with the schedule struck through. Where the supplier's terms did get in, use Article 137(4) to argue that the negotiated terms prevail, Article 98 to read every unclear term in the buyer's favour, and Article 138 to strike the clauses that remove the buyer's objections, deadlines and rights. And keep the correspondence, because Article 97 makes the negotiations and the parties' practice part of the interpretation.
When the clause is tested
A standard terms dispute in Montenegro is decided on the record from before the contract: the publication of the terms, the quotation and order and confirmation sequence, the timing of each objection, and the framework agreement if any. A term that was not knowable at contracting, a counter-offer that was not rejected, and a clause the court refuses to apply under Article 138 are each fatal to the case that relies on them. Claims between companies from commercial contracts are time-barred three years from the breach under Article 383, per delivery, on the limitation periods page, and the wider legal function this page belongs to is described on the outsourced legal department page.
Whose side we are on, and how we are paid
The group's legal department drafted the terms for the group and assumes they apply wherever the order goes. The Montenegrin supplier's lawyer knows about Article 36 and says nothing until the dispute. The purchasing manager took delivery of the goods that came with the supplier's confirmation and did not read the second page. None of them is paid to tell you, before the first order, that your terms were not knowable when the contract was made, that your deemed acceptance clause is void, or that the delivery you accepted was the acceptance of the other side's terms.
We take no commission or referral fee from distributors, suppliers, agents or counterparties, in any form, on any file. The fee you pay us is our only income from your matter, and it does not depend on whether a contract is signed or a claim is paid. Because our position does not move with the outcome, telling a supplier that its terms never bound anyone in Montenegro, or a buyer that its silence made the supplier's confirmation the contract, costs us nothing to say.
One boundary, stated plainly. We are lawyers, not licensed investment advisers and not sales consultants. We do not decide which terms a business should offer. What we protect is the Montenegrin legal position: terms that were published and knowable when the contract was made, negotiated terms that prevail, objections made at once in writing, and a signed document that says what the parties actually agreed.
Before the next order is placed or the next set of terms is accepted
Send us the framework or the order flow, the terms on each side, the quotations, confirmations and invoices exchanged and the correspondence around them. We will tell you which terms bind under Montenegrin law today, what must change in the order flow so that yours do, and what to say in the next confirmation or objection. Our corporate work in Montenegro is described on the Montenegro lawyer page.
What this page does not settle
Consumer contracts under the consumer protection law, insurance and banking terms under their sector regulation, terms approved by regulators in utilities and transport, the detail of choice of forum and arbitration clauses, the Companies Act rules on who may sign for a company and the conduct of litigation are separate subjects. Whether a specific term offends good business customs or is excessively strict is decided by the court on the facts.
