The issue of the unfair nature of the clauses is proposed in the presence of a consumer contract included between a trader and a consumer within the meaning of § 13, item 1 of the Additional Provisions of the Consumer Protection Act (‘CPA’).
According to the CPA, “consumer” is any individual who acquires goods or uses services that are not intended for commercial or professional activities, and any natural person who, as a party to a contract under this law, acts outside its commercial or professional activity.
An unfair clause in a consumer agreement is any stipulation to the detriment of the consumer that does not meet the requirements of good faith and leads to a significant imbalance between the rights and obligations of the trader or supplier and the consumer. According to the CPA, the unfair clauses in the contracts are invalid, unless they are agreed individually.
Therefore, it is unequal:
- any non-individually determined stipulation to his detriment, which
- does not meet the requirement for good faith and
- leads to a significant imbalance between the rights and obligations of the trader or the supplier and the consumer.
These prerequisites must be present simultaneously to assume that the clause is unfair.
In Art. 143, para. 2 of the CPA is made an exemplary list of the hypotheses in which the clause included in the consumer agreement should be considered unfair. What the hypotheses have in common is the right of the trader to unilaterally and without objective reason to amend the agreement, which leads to damage to the equivalence of consideration or limitation of consumer protection in case of culpable non-performance of contractual obligations by the trader.
According to CPA unfair is the term that has the object or effect of:
“1. excluding or limiting the statutory liability of a producer, trader, or supplier in the event of the death of a consumer or personal injury to the consumer resulting from an act or omission of the trader or supplier;
- excluding or limiting the statutory rights of the consumer against the trader or supplier or another party in the event of total or partial non-performance or inadequate performance of any of the contractual obligations, including the option of offsetting a debt owed to the trader or supplier against any claim which the consumer may have against the trader;
- making the fulfillment of contractual obligations by the trader or supplier subject to a condition whose realization depends on his own will alone;
- permitting the trader or supplier to retain sums paid by the consumer where the consumer decides not to conclude or perform the contract, without providing for the consumer to receive compensation of an equivalent amount from the trader or supplier where the trader or supplier is the party cancelling the contract;
- requiring any consumer who fails to fulfill the obligation to pay a disproportionately high sum in compensation;” and others, as the enumeration in the law continues until item 20.
According to the CPA, the clauses that have been prepared in advance by the trader (most often in its General Terms and Conditions) have not been individually agreed and therefore the consumer has not had the opportunity to influence their content. Therefore, the clause may be unfair even when it is contained in the agreement between the parties, but it is a standard (uniform) contract that the trader concludes with an unlimited number of consumers, in cases where the consumer has not had the opportunity to influence its content.
In order for the clause to be unfair, it must be agreed to the detriment of the consumer, i.e. to violate his rights and legitimate interests.
Also, the clause should lead to a significant imbalance between the rights and obligations of the trader and the consumer. This will be the event in case of significant discrepancy in the parties ‘consideration, which makes them non-equivalent, as well as in cases when the parties’ opportunities to exercise and defend their rights under the contract are not equal.