LexInter | May 7, 2004 | 0 Comments


 SECTION 2. – Unfair terms.
Art. 31. (§ 1.) For the application of this law, an unfair term should be understood to mean any clause or condition which, by itself or in combination with one or more other clauses or conditions, creates a manifest imbalance between the rights and the obligations of the parties. <L 1998-12-07 / 35, art. 2.011; In force: 01-02-1999>
(§ 2. For the application of this section, the following should be understood as:
1 ° products: not only tangible movable property, but also immovable property, rights and obligations;
2 ° seller: not only the persons referred to in article 1, 6, but also any other natural or legal person, with the exception of holders of a liberal profession as defined in article 2, 1 °, of the law of 3 April 1997 relating to unfair terms in contracts concluded with their clients by holders of liberal professions, who, in a contract concluded with a consumer, acts within the framework of his professional activity.
§ 3. The abusive nature of a contractual clause is assessed by taking into account the nature of the products or services which are the subject of the contract and 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, or of
The assessment of the unfair nature of the clauses does not relate to the definition of the main object of the contract, nor to the adequacy between the price and the remuneration, on the one hand, and the products or services to be provided in return, d on the other hand, provided that these clauses are drafted in a clear and understandable manner.
§ 4. When all or certain clauses of the contract are written, these clauses must be written in a clear and understandable manner.
In case of doubt about the meaning of a clause, the interpretation most favorable to the consumer prevails. This rule of interpretation does not apply in the context of the injunction provided for in article 95.) <L 1998-12-07 / 35, art. 2.011; Effective: 01-02-1999>
Art. 32. (In contracts concluded) between a seller and a consumer, the clauses and conditions or the combinations of clauses and conditions which have as their object: <L 1998-12-07 / 35, art. 3.011; In force: 01-02-1999>
1. provide when signing the contract for an immediate and final commitment by the consumer while the seller contracts under a condition whose fulfillment depends on his sole will;
2. vary the price according to elements depending on the sole will of the seller;
(This provision does not preclude:
– price indexation clauses provided that they are not unlawful and that the price adjustment method is explicitly described in the contract;
– the clauses according to which the seller of financial services reserves the right to modify the price of these services, provided that the obligation to inform the consumer is made with reasonable notice and that the latter is free to immediately terminate the contract;
– the clauses according to which the seller of financial services reserves the right to modify the interest rate owed by the consumer or due to the latter, without any notice in the event of a valid reason, provided that this is charged to the seller the obligation to inform the consumer as soon as possible and that he is free to immediately terminate the contract.) <L 1998-12-07 / 35, art. 3.011; Effective: 01-02-1999>
3.reserve the seller the right to unilaterally modify the characteristics of the product to be delivered or of the service to be provided, if these characteristics are essential for the consumer or for the use for which the consumer intends the product or service, provided that the unless such use has been communicated to and accepted by the seller or unless such a specification has been made, such use has been reasonably foreseeable;
4. unilaterally fix or modify the delivery time of a product or the execution time of a service;
5.Give the seller the right to unilaterally determine whether the product delivered or the service provided conforms to the contract (or to grant him the exclusive right to interpret any clause of the contract) <L 1998-12-07 / 35, art . 3.011; In force: 01-02-1999>
6. prohibit the consumer from requesting the termination of the contract if the seller does not perform his obligations;
7. restrict the consumer’s right to withdraw from the contract when, within the framework of his warranty obligation, the seller does not comply with his obligation to repair the product or does not comply with it within a reasonable time;
8. oblige the consumer to perform his obligations when the seller has not performed his or is in default to perform his;
9. without prejudice to article 1184 of the Civil Code, authorize the seller to terminate or modify the contract unilaterally, without compensation for the consumer, except in the event of force majeure;
10. even in cases of force majeure, only authorize the consumer to terminate the contract upon payment of damages;
11. release the seller from his responsibility because of his fraud, his gross negligence or that of his servants or agents or because of any non-performance of an obligation consisting of one of the main services of the contract;
12. remove or reduce the legal guarantee with regard to hidden defects provided for by articles 1641 to 1649 of the Civil Code;
13. set an unreasonably short deadline for reporting defects to the seller;
14. prohibit the consumer from offsetting a debt to the seller with a claim he has on him;
15. determine the amount of compensation due by the consumer who does not perform his obligations, without providing for compensation of the same order to be paid by the seller who does not perform his;
16. engage the consumer for an indefinite period, without specifying a reasonable period of termination;
17. to extend the contract for an unreasonable duration if the consumer does not terminate in time (or to automatically extend a fixed-term contract, in the absence of a contrary notification from the consumer, while an excessively distant date from the end of the contract has been set as the deadline for expressing this desire for non-extension on the part of the consumer); <L 1998-12-07 / 35, art. 3.011; In force: 01-02-1999>
18. limit the means of proof that the consumer can use;
19. make the consumer renounce, in the event of a dispute, any means of recourse against the seller;
20. allow the applicant, by means of an address given in the contract, to bring his application before a judge other than the one designated by article 624, 1 °, 2 ° and 4 °, of the Judicial Code, without prejudice to the application of the Convention of September 27, 1968 on jurisdiction and the enforcement of decisions in civil and commercial matters, approved by the law of January 13, 1971;
21. set the amounts of damages claimed in the event of non-performance or delay in the performance of the buyer’s obligations which clearly exceed the extent of the damage likely to be suffered by the seller.
(22. authorize the seller to terminate or modify the contract due to the introduction of the euro.
This provision is not applicable to clauses which have been the subject of individual negotiation.
If the seller maintains that the clause was individually negotiated, the burden of proof falls on him.
However, a clause is considered irrebuttably as not having been the subject of individual negotiation when it was drafted prior to the conclusion of the contract and the consumer has therefore not may have influence on its content, in particular within the framework of a membership contract.) <L 1998-10-30 / 31, art. 58, 010; Effective: 01-12-1998>
((22bis.) To exclude or limit the legal liability of the seller in the event of the consumer’s death or bodily injury caused to the latter, resulting from an act or omission of this seller; <L 1999- 05-25 / 42, art. 9, 013; In force: 01-10-1999>
23. establish irrefutably the consumer’s adherence to clauses which he has not had, in fact, the opportunity to take knowledge before the conclusion of the contract;
24. allow the seller to withhold sums paid by the consumer when the latter renounces to enter into the contract, without providing for the right, for the consumer, to receive compensation of an equivalent amount of the part of the seller when it is the latter who renounces;
25. allow the seller to withhold sums paid by the consumer when it is the seller himself who terminates the contract;
26. restrict the seller’s obligation to respect the commitments made by his agents or to subject his commitments to compliance with a particular formality;
27. exclude or inappropriately limit the legal rights of the consumer vis-à-vis the seller or another party in the event of total or partial non-performance or defective performance by the seller of any of his obligations contractual;
28. provide for the possibility of transfer of the contract by the seller, when it is likely to lead to a reduction in guarantees for the consumer, without the latter’s agreement.) <L 1998-12-07 / 35, art. 3.011; In force: 01-02-1999>
Art. 33. <L 1998-12-07 / 35, art. 4.011; In force: 01-02-1999> § 1. Any abusive clause within the meaning of the provisions of this section is prohibited and void.
The contract remains binding on the parties, if it can survive without unfair terms.
The consumer may not waive the benefit of the rights conferred on him by this section.
§ 2. A clause declaring applicable to the contract the law of a State outside the European Union is deemed unwritten with regard to the matters governed by this section when, in the absence of this clause, the law of a State, member of the European Union would be applicable and that this law provides a higher protection to the consumer in the aforementioned matters.
Art. 34. In order to ensure the balance of rights and obligations between the parties in the sale of products or services to consumers or in order to ensure the fairness of commercial transactions, the King may, by decree deliberated in the Council of Ministers, for the sectors of commercial activity or the categories of products and services that He determines, prescribe or prohibit the use of certain clauses in consumer sales contracts. It may also require the use of standard contracts.
Before proposing an order in application of paragraph 1, the Minister consults the Unfair Terms Commission and the Superior Council of Middle Classes and sets the time limit within which the opinion must be given. After this period, the notice is no longer required.

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