ABUSIVE CLAUSES DECREE
LexInter | September 3, 2016 | 0 Comments

ABUSIVE CLAUSES DECREE

Section 1: Consumer protection against unfair terms

Article R132-1

In sales contracts concluded between professionals, on the one hand, and non-professionals or consumers, on the other hand, is prohibited as abusive within the meaning of paragraph 1 of Article L. 132-1 the clause having the object or effect of removing or reducing the right to compensation of the non-professional or consumer in the event of failure by the professional to fulfill any of his obligations.

Article R132-2

n contracts concluded between professionals and non-professionals or consumers, a clause having the object or effect of reserving to the professional the right to unilaterally modify the characteristics of the goods to be delivered or of the service to be rendered is prohibited.
However, it may be stipulated that the trader can make changes linked to technical development, provided that this does not result in an increase in prices or quality deterioration and that the clause reserves the possibility of the non-trader or consumer. to mention the characteristics to which he subordinates his engagement.

 Decree No. 2009-302 of March 18, 2009 implementing Article L. 132-1 of the Consumer Code

The Prime Minister,
On the report of the Minister of the Economy, Industry and Employment,
Having regard to the Consumer Code, in particular its articles L. 132-1 , L. 133-1 , R. 132 -1, R. 132-2 and R. 132-2-1 ;
Having regard to the Monetary and Financial Code, in particular its article L. 614-2 ;
Considering the law n ° 2008-776 of August 4, 2008 of modernization of the economy, in particular the III of its article 86 ;
Having regard to the opinion of the unfair terms commission dated November 13, 2008;
Having regard to the opinion of the Advisory Committee on Financial Legislation and Regulation dated December 8, 2008;
Having heard the Council of State (finance section), Decrees:

Article 1

Article R. 132-1 of the Consumer Code is replaced by the following provisions:
“Art.R. 132-1.-In contracts concluded between professionals and non-professionals or consumers, are irrebuttably presumed abusive, within the meaning of the provisions of the first and third paragraphs of article L. 132-1 and therefore prohibited, clauses having as their object or effect:
“1 ° To ascertain that the non-professional or the consumer adheres to clauses which do not appear in the writing that he accepts or which are included in another document to which no express reference is made when concluding the contract and of which he was not aware before its conclusion;
“2 ° Restrict the professional’s obligation to respect the commitments made by his employees or agents;
“3 ° Reserve for the professional the right to unilaterally modify the clauses of the contract relating to its duration, to the characteristics or to the price of the goods to be delivered or of the service to be rendered;
“4 ° Grant the sole professional the right to determine whether the item delivered or the services provided comply or not with the stipulations of the contract or grant him the exclusive right to interpret any clause of the contract;
“5 ° Forcing the non-professional or the consumer to perform his obligations while, conversely, the professional would not perform his obligations to deliver or guarantee a good or his obligation to provide a service;
“6 ° Eliminate or reduce the right to compensation for the damage suffered by the non-professional or the consumer in the event of failure by the professional to fulfill any of his obligations;
“7 ° Prohibit the non-professional or the consumer from the right to request the resolution or termination of the contract in the event of non-performance by the professional of his obligations to deliver or guarantee a good or his obligation to supply a service ;
8 ° Recognize the right of the trader to terminate the contract at his own discretion, without recognizing the same right of the non-trader or the consumer;
“9 ° Allow the professional to withhold sums paid for services not performed by him, when the latter himself terminates the contract at his own discretion;
“10 ° Submit, in contracts of indefinite duration, termination to a longer notice period for the non-professional or the consumer than for the professional;
“11 ° Make termination by the non-professional or by the consumer conditional on the payment of compensation for the benefit of the professional;
“12 ° Impose on the non-professional or the consumer the burden of proof, which, under the applicable law, should normally fall on the other party to the contract. ”

Article 2

Article R. 132-2 of the Consumer Code is replaced by the following provisions:
“Art.R. 132-2.-In contracts concluded between professionals and non-professionals or consumers, are presumed to be abusive within the meaning of the provisions of the first and second paragraphs of article L. 132-1, except for the professional to report the proof to the contrary, clauses having as their object or effect:
“1 ° Provide for a firm commitment by the non-professional or the consumer, while the performance of the services of the professional is subject to a condition the fulfillment of which depends on his sole will. ;
“2 ° Authorize the professional to keep sums paid by the non-professional or the consumer when the latter renounces to enter into or perform the contract, without reciprocally providing for the right for the non-professional or the consumer to receive compensation for ” an equivalent amount, or equal to twice in the event of payment of a deposit within the meaning of Article L. 114-1, if it is the professional who waives;
“3 ° Impose on the non-professional or on the consumer who does not fulfill his obligations an indemnity of a manifestly disproportionate amount;
“4 ° Recognize that the professional has the right to terminate the contract without notice of a reasonable duration;
“5 ° Allow the professional to proceed with the assignment of his contract without the agreement of the non-professional or the consumer and when this assignment is likely to lead to a reduction in the rights of the non-professional or the consumer;
“6 ° Reserve for the professional the right to unilaterally modify the clauses of the contract relating to the rights and obligations of the parties, other than those provided for in 3 ° of article R. 132-1;
“7 ° Stipulate an indicative date of execution of the contract, except in cases where the law authorizes it;
“8 ° Subject the resolution or termination of the contract to conditions or modalities more rigorous for the non-professional or the consumer than for the professional;
“9 ° Unduly limit the means of proof available to non-professionals or consumers;
“10 ° Eliminate or hinder the exercise of legal actions or remedies by the consumer, in particular by forcing the consumer to refer exclusively to an arbitration court not covered by legal provisions or to go exclusively through an alternative mode dispute resolution. ”

Article 3

Article R. 132-2-1 of the Consumer Code is replaced by the following provisions:
“Art.R. 132-2-1.-I. – 3 ° of article R. 132-1 and 4 ° and 6 ° of article R. 132-2 are not applicable:
“a) To transactions concerning transferable securities, financial instruments and other products or services the price of which is linked to fluctuations in a price, an index or a rate that the trader does not control;
“B) Contracts for the purchase or sale of foreign currency, traveller’s checks or international money orders issued at a post office and denominated in foreign currency.
“II. – 3 ° of article R. 132-1 and 6 ° of article R. 132-2 do not preclude the existence of clauses by which the financial service provider reserves the right to modify the interest rate owed by or owed by the non-professional or the consumer, or the amount of any charges relating to financial services, without any notice in the event of a legitimate reason, provided that this is charged to the professional the obligation to inform the other contracting party (s) as soon as possible and that they are free to terminate the contract immediately.
“III. – 8 ° of article R. 132-1 and 4 ° of article R. 132-2 do not preclude the existence of clauses by which the financial service provider reserves the right to terminate a contract of indefinite duration unilaterally, and without notice in the event of a legitimate reason, provided that the professional is responsible for the obligation to inform the other contracting party (s) immediately.
“IV. – 3 ° of article R. 132-1 and 6 ° of article R. 132-2 do not preclude the existence of clauses by which the contract, when it is concluded for an indefinite period, stipulates that the trader can unilaterally make changes related to the price of the goods to be delivered or of the service to be rendered on condition that the consumer has been notified within a reasonable time to be able, if necessary, to terminate the contract.
“V. – 3 ° of article R. 132-1 and 6 ° of article R. 132-2 do not preclude the existence of clauses by which the contract stipulates that the professional can unilaterally provide modifications to the contract linked to technical development, provided that neither price increase nor quality deterioration results and that the characteristics to which the non-professional or the consumer has made his commitment subject to contract. ”

Article 4

The Minister of the Economy, Industry and Employment, the Keeper of the Seals, Minister of Justice, and the Secretary of State for Industry and Consumption, spokesperson for the Government, are each responsible for the execution of this decree, which will be published in the Official Journal of the French Republic.

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