It is hardly possible for consumer protection and related laws to list all the examples of abusive contractual clauses. Many statutes therefore require a court to find injustice. In many countries, there are databases that refer to examples of abusive contractual clauses (and case law). These serve as guidance to consumers and businesses on how to find abusive contractual clauses and not use them in contracts with consumers. There are laws that protect you from abusive clauses in the form of standard consumer contracts. Only the courts can decide whether a clause is unfair or not. If you think a term is unfair and you have not been able to resolve the issue directly with the trader, you may want to consider legal action. Learn more about the procedure for low-value applications and legal action in civil proceedings. If the trader is based in another EU country, you can apply the European procedure for small applications. Most contracts work well. However, certain contractual conditions may be unfair. This is due to ignorance or the interest of the use of profits, companies can harm consumers by circumventing the responsibility for the safety, performance or shelf life of the goods and/or services they offer. This can be a repressive or exploitable burden for consumers and create a significant imbalance between the rights and obligations of consumers and businesses.
The following questions can help you detect a potentially unfair clause, but it is important to note that the final decision as to whether a clause is unfair can only be made by a court. The regulations contain a clause that may be unfair, called the “grey list.” This list does not contain all the terms and, in some cases, a term on the list may be fair. Similarly, a term that is not on the list may be considered unfair if it disadvantages the consumer. In this example, the operating manual contains a term indicating that the franchisee must pay $500 to the franchisor when a customer files a complaint about the franchisee. This term in the operating manual should be of concern, as it unduly penalizes the franchisee and is probably not necessary to protect the legitimate interests of the franchisor. A franchisee enters into a franchise agreement for a cupcake franchise. The term of the contract provides that the contract can be terminated if the franchisee does not sell a certain number of cupcakes per month. Another term of contract provides that the franchisor may, at any time and without the franchisee`s consent, change the minimum number of cupcakes that the franchisee must sell each month. The fairness of a clause must be taken into account in the treaty as a whole.
Only a court can decide whether a clause is unfair. The term allowing the franchisor to vary the minimum number of cupcakes the franchisee must sell should raise concerns, as it allows the franchisor to unilaterally complicate the contract.