Prohibition of deviations from the statutory provisions protecting consumers, and selected prohibited contractual provisions
The Civil Code also stipulates rules that protect the consumer by prohibiting some provisions in consumer contracts. These rules must be automatically applied to the legal framework for all consumer contracts.
In particular, a contract may not deviate from the statutory provisions protecting consumers. In addition, consumer contracts may not include provisions which – in contravention of the proportionality requirement – give rise to significant imbalances between the rights and obligations of the parties to the detriment of the consumer. This does not apply to provisions regarding performance or price if they are provided to the consumer in a clear and understandable manner. Deviating and prohibited provisions are not taken into account in the performance of the contract and are regarded as though they were never agreed between the parties, except where the consumer himself relies on the disproportionate provisions.
In addition, the interpretation that is more favourable to the consumer applies in cases of doubt regarding the meaning of consumer contracts. This special interpretative rule is based on the fact that consumer contracts are mostly drafted by the entrepreneur (financial service provider), so if they contain provisions allowing for different interpretations, any ambiguities and potential unfavourable impacts represent a burden on the supplier.
In particular, the Civil Code prohibits provisions (only some examples are given for illustration)
- excluding or restricting the rights of the consumer when claiming liability of the entrepreneur for defects or damage;
- obliging the consumer to perform, whereas the entrepreneur’s obligation to perform arises upon fulfilment of a condition depending on his own will,
- entitling the entrepreneur, but not the consumer, to withdraw from the contract with no legal grounds;
- entitling the entrepreneur to cancel an obligation without having a reason deserving special consideration and without giving an adequate period of notice;
- irrevocably obliging the consumer to fulfil conditions he could not have acquainted himself with before the conclusion of the contract;
- allowing the entrepreneur to change the rights or obligations of the parties of his own will (unilaterally);
- postponing the determination of the price until the time of performance of the contract;
- enabling the entrepreneur to increase the price with no possibility for the consumer to withdraw from the contract;
- depriving the consumer of the right to file a lawsuit or use another procedural remedy, or preventing him from exercising such right, or requiring him to exercise such right solely with a court of arbitration or arbitrator not bound by consumer protection legal rules;
- depriving the consumer of his right to determine which obligation is to be met first from his performance.