DEFINITION OF ABUSIVE CLAUSES
LexInter | October 10, 2018 | 0 Comments

DEFINITION OF ABUSIVE CLAUSES

The field of application is defined according to the concept of non-professional which broadens the concept of consumer.

The definition of unfair terms, which the 1978 legislator sought to limit to administrative control, is now clearly recognized as being in fact primarily the domain of the judge.

The ordinance of 23 August 2001 modifies article 7 to implicitly allow the assessment of the unfair nature of the clause to relate to the definition of the main object of the contract or to the adequacy of the price or the remuneration when the clauses are not written in a clear and understandable way.

  Article L132-1

(Law n ° 95-96 of February 1, 1995, art. 1, annex Official Journal of February 2, 1995)

In contracts concluded between professionals and non-professionals or consumers, clauses which have the object or effect of creating, to the detriment of the non-professional or the consumer, a significant imbalance between the rights and obligations of the parties to the contract are unfair.
Decrees issued by the Council of State, taken after the opinion of the commission established in article L. 132-2, may determine the types of clauses which must be regarded as abusive within the meaning of the first paragraph.
An appendix to this code includes an indicative and non-exhaustive list of clauses which may be regarded as abusive if they meet the conditions set out in the first paragraph. In the event of a dispute concerning a contract including such a clause, the applicant is not exempted from providing proof of the abusive nature of this clause.
These provisions are applicable whatever the form or medium of the contract. This is particularly the case with order forms, invoices, guarantee certificates, delivery slips or slips, tickets or tickets, containing stipulations negotiated freely or not or references to pre-established general conditions.
Without prejudice to the rules of interpretation provided for in Articles 1156 to 1161, 1163 and 1164 of the Civil Code, the unfair nature of a clause is assessed by referring, at the time of the conclusion of the contract, to all the circumstances surrounding its conclusion, as well as all other clauses of the contract. It is also assessed with regard to those contained in another contract when the conclusion or performance of these two contracts legally depend on one another.
Unfair terms are deemed unwritten.
The assessment of the unfair nature of the clauses within the meaning of the first paragraph does not relate to the definition of the main object of the contract or to the adequacy of the price or the remuneration for the goods sold or the service offered.
The contract will remain applicable in all its provisions other than those considered abusive if it can subsist without the aforementioned clauses.
The provisions of this article are of public order.

Annex: clauses referred to in the third paragraph of article L. 132-1.
1. Clauses having as their object or effect:
a) To exclude or limit the professional’s legal liability in the event of the death of a consumer or bodily injury caused to the latter, resulting from an act or omission of this professional;
b) To exclude or inappropriately limit the legal rights of the consumer vis-à-vis the trader or another party in the event of total or partial non-performance or defective performance by the trader of any contractual obligations, including the possibility of offsetting a debt to the professional with a claim he would have against him;
c) To provide for a firm commitment by the consumer, while the performance of the services of the professional is subject to a condition whose fulfillment depends on his sole will;
d) To allow the trader to withhold sums paid by the consumer when the latter renounces to enter into or perform the contract, without providing for the right, for the consumer, to receive compensation of an equivalent amount from the trader when it is he who gives up;
e) To impose on the consumer who does not fulfill his obligations a disproportionately high amount of compensation;
f) To authorize the professional to terminate the contract on a discretionary basis if the same option is not granted to the consumer, as well as to allow the professional to withhold the sums paid for services not yet performed by him, when it is is the professional himself who terminates the contract;
g) To authorize the professional to terminate a contract of indefinite duration without reasonable notice, except in the event of serious cause;
h) To automatically extend a fixed-term contract in the absence of a contrary expression from the consumer, when an excessively distant date from the end of the contract has been set as the deadline for expressing this will not to extend the party of the consumer;
i) To ascertain irrefutably the consumer’s adherence to clauses which he did not have the opportunity to take cognizance of before the conclusion of the contract;
j) Authorize the professional to unilaterally modify the terms of the contract without a valid reason specified in the contract;
k) Authorize professionals to unilaterally modify without valid reason the characteristics of the product to be delivered or the service to be provided;
l) To provide that the price of goods is determined at the time of delivery, or to grant the seller of goods or the supplier of services the right to increase their prices without, in either case, the consumer having of corresponding right allowing him to terminate the contract in the event that the final price is too high compared to the price agreed when the contract was concluded;

m) Grant the trader the right to determine whether the item delivered or the service provided complies with the stipulations of the contract or grant him the exclusive right to interpret any clause of the contract;
n) To restrict the professional’s obligation to respect the commitments made by his agents or to subject his commitments to compliance with a particular formality;
o) To oblige the consumer to perform his obligations even when the trader fails to perform his;
p) To provide for the possibility of transfer of the contract by the trader, when it is likely to lead to a reduction in guarantees for the consumer without the
q) To suppress or hinder the exercise of legal actions or remedies by the consumer, in particular by obliging the consumer to refer exclusively to an arbitration court not covered by legal provisions, by unduly limiting the means available to the consumer or by imposing on the consumer a burden of proof which, under applicable law, would normally fall on another party to the contract.
2. Scope of points g, j and l:
a) Point g does not preclude clauses by which the financial service provider reserves the right to terminate the indefinite contract unilaterally, without notice in the event of a valid reason, provided that the charges the trader with the obligation to inform the other contracting party (s) immediately;
b) Point j does not preclude clauses according to which the financial service provider reserves the right to modify the interest rate owed by or due to the consumer, or the amount of any other charges relating to financial services, without any prior notice in the event of a valid reason, provided that the trader is responsible for informing the other contracting party (s) as soon as possible and that they are free to immediately carry out the contract.
Point j also does not preclude clauses according to which the trader reserves the right to unilaterally modify the conditions of a contract of indefinite duration provided that he is responsible for the duty to inform the consumer thereof with prior notice. reasonable and that he is free to terminate the contract;
c) Points g, j and l are not applicable to:
– transactions concerning transferable securities, financial instruments and other products or services the price of which is linked to fluctuations in a price or a stock market index or financial market rate that the professional does not control;
– contracts for the purchase or sale of currencies, traveller’s checks or international money orders denominated in foreign currencies;
d) Point l does not preclude price indexation clauses provided that they are lawful and that the method of price variation is explicitly described therein.

CONSUMER CODE (Regulatory Part – Decrees of the Council of State)
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

In 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.

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