Unfair terms

Originally: to combat abusive conditions in standard terms and conditions

Professionals most often offer the consumer or non-professional non-negotiable, pre-drafted standard conditions, favourable to imbalances, to "abuses", for example in the field of residential leases, insurance, removals, or other contracts intended for the consumer, and whatever the medium used: order forms, invoices, guarantee vouchers, delivery slips or tickets, etc.

Decrees listing abusive clauses

The French legislator took up the issue with Law No. 78-23 of 10 January 1978 by providing that the executive, on the recommendation of a (state) Commission on Unfair Terms, could henceforth curb this massive phenomenon by decreeing which terms were unfair.

The abusive clause is one that creates an imbalance, but does not relate to the thing and the price.

An unfair term is one which, although it may not relate to the subject matter of the contract or to the price (other regimes apply), creates a "significant imbalance".

The judge, later confirmed by the law, also recognised this power, by deeming "unwritten" the clause which he could judge to be unfair in application of the legal criteria, in particular on referral from consumer associations or the DGCCRF.

This public policy regime is applicable throughout the national territory as long as the consumer is present, including when international relations are involved.

What penalty?

It is the public authorities and consumer associations that are most interested in unfair terms and seek court orders (after warnings) for withdrawal and compensation.

See for example the group action launched by UFC Que Choisir against Google:

Privacy/personal data – Class action against Google

Individuals are not deprived of recourse and will invoke the unfairness of a clause in the event of a dispute over a contract. They can seek the intervention of consumer associations.

http://www.inc-conso.fr/content/les-associations-de-consommateurs

In any case, a clause which is found to be unfair shall be deemed "unwritten".

What to do if you suspect that a clause is "unfair"?

It is advisable to check that the clause is not already considered to be definitively unfair, or probably unfair, in the lists provided for in Articles R211-1 et seq. of the Consumer Code.

Indeed, terms already declared unfair or suspected of being unfair according to these texts are likely to be spontaneously abandoned by the seller or service provider, or confirmed as unfair by the judge.

By the way,

"The judge may raise ex officio all the provisions of this code in disputes arising from its application.

It shall, of its own motion, after having heard the parties' observations, set aside the application of a term the unfairness of which is apparent from the elements of the debate". (Article R. 632-1 of the Consumer Code)

The judge, but also the professionals, the consumer associations, the public authorities, can in all cases refer to the Commission on unfair terms for an opinion (Articles L882-5 and R822-21 of the Consumer Code).

The collection of court decisions, opinions and recommendations compiled by the Commission des clauses abusives illustrates the cases where a clause has been found to be unfair. These decisions may also serve as a reference: