In order to re-establish a balance in the relationship between a professional and a consumer, the French legislator has created a mechanism of “unfair terms”, which punishes any contractual term that creates an imbalance to the detriment of the consumer.
Article L.212-1 of the French Consumer Code defines unfair terms in contracts concluded between professionals and consumers (or non-professionals) as being “terms whose purpose or effect is to create, to the detriment of the consumer, a significant imbalance between the rights and obligations of the parties to the contract”.
The system of unfair terms applies to all types of BtoC contracts, including purchase orders, invoices, warranty certificates, delivery notes, general terms and conditions of sale, etc.
The unfairness of a term is assessed at the time of conclusion of the contract, with reference to all the circumstances surrounding its conclusion and to the other terms of the contract. Unfairness can also be assessed in relation to terms contained in another contract, when the two contracts are legally linked in their conclusion or performance.
Please note: the assessment of the unfairness of terms does not concern the definition of the main object of the contract, nor the adequacy of the price for the good or service – provided that the contract terms are drafted in a clear and comprehensible manner.
Professionals must therefore ensure that the provisions of their BtoC contracts are comprehensible and balanced.
How do you know if a term is unfair?
Article R.212-1 of the French Consumer Code sets out a list of 12 clauses – known as “black clauses” – which must be regarded as irrefutably unfair because of the seriousness of the harm they cause to the balance of the contract. These terms are therefore prohibited.
They include – in particular – terms whose object or effect is to:
- reserve to the professional the right to unilaterally modify the terms of the contract relating to its duration, the characteristics or the price of the goods to be delivered or the service to be rendered;
- eliminate or reduce the consumer’s right to compensation in the event of a breach by the professional of any of his obligations;
- grant the professional the right to terminate the contract at will, without granting the consumer the same right;
- subject termination of open-ended contracts to a longer notice period for the consumer than for the professional;
- make termination of open-ended contracts by the consumer subject to payment of compensation to the professional.
Article R.212-2 of the French Consumer Code provides a list of clauses presumed to be unfair, known as “grey clauses”.
These include – in particular – terms whose object or effect is to :
- impose a manifestly disproportionate indemnity on a consumer who fails to perform his or her obligations;
- grant the professional the right to terminate the contract without reasonable notice;
- subject the cancellation or termination of the contract to conditions or procedures that are more rigorous for the consumer than for the professional;
- unduly limit the means of proof available to the consumer;
- suppress or impede the consumer’s right to take legal action or exercise legal remedies.
In the event of a dispute concerning a term presumed to be unfair within the meaning of article R.212-2 of the French Consumer Code, the professional must prove that the term is not unfair.
It is also advisable to refer to the recommendations of the “Commission des clauses abusives, which examines contracts in specific sectors and issues recommendations on the deletion of terms it considers unfair, or suggests that certain terms be circumstantiated so that they do not qualify as unfair.
Although the recommendations of the “Commission des clauses abusives” are set to “recommend” and not to “impose”, it is necessary to follow them since judges generally refer to them in the event of litigation.
Need assistance in drafting your BtoC contracts, or an audit of your existing contracts? Don’t hesitate to contact the Linkea team.
