Unfair terms

Article L.132-1 of the Consumer Code, relating to unfair terms in contracts concluded between professionals and consumers, prohibits clauses “which have the purpose 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”.

We invite you to discover here our video on selling to consumers: qualifying as an unfair clause.

Articles R. 132-1 and R.132-2 of the Consumer Code list a number of clauses that are presumed to be abusive, and therefore unwritten.

The clauses referred to in Article R.132-1 of the Consumer Code constitute a blacklist of clauses presumed to be irrefutably abusive, such as, for example, the clause whose purpose or effect is to “reserve to the professional the right to unilaterally modify the clauses of the contract relating to its duration, characteristics or price of the good to be delivered or the service to be rendered”.

The grey list of unfair terms, found in Article R.132-2 of the Consumer Code, concerns terms that are simply presumed to be unfair, that is to say that they are presumed to be unfair unless proven otherwise. For example, we will find in this list the clause whose purpose or effect is to “impose on the non-professional or the consumer who does not perform his obligations an indemnity of a manifestly disproportionate amount.”

The system to combat unfair terms was strengthened by Law No. 2014-344 of 17 March 2014, known as the  “Hamon” law, which increases the powers of judges, the DGCCRF and consumer associations in this area.

Indeed, the judge now has the power to dismiss ex officio, in the context of litigation, the application of a clause whose unfairness emerges from the debates. Consumer associations may ask the competent court to declare that the disputed clause is deemed unwritten in all identical contracts concluded by the trader with consumers.

Professionals also incur, in the presence of an abusive clause referred to in the blacklist in a contract concluded with a consumer, a fine of up to 15,000 euros for a legal person.