The effects of unfair terms on the binding force principle of contracts

Author:Victor Marcusohn
Pages:22-34
SUMMARY

Regulations regarding the unfair terms in the contracts signed by a consumer and a professional are mainly, but not entirely, found in the consumer protection law. Therefore, consumer protection law is becoming a very diverse field of law, comprising many normative acts which often offer contradictory solutions. The most important of them is Law no. 193/2000 regarding the unfair terms in the contracts signed between consumers and professionals, which transposes Directive 93/13/EEC. According to the Romanian law and doctrine in the field of consumer protection, the most important elements for a term to be considered abusive are the lack of direct contractual negotiation between the professional and the consumer, the lack of contractual balance and the total ignorance of the obligation of good faith.

 
CONTENT
22 VICTOR MARCUSOHN
THE EFFECTS OF UNFAIR TERMS ON THE BINDING FORCE
PRINCIPLE OF CONTRACTS
Victor MARCUSOHN
Abstract:
Regulations regarding the unfair terms in the contracts signed by a consumer and a
professional are mainly, but not entirely, found in the consumer protection law. Therefore, consumer
protection law is becoming a very diverse field of law, comprising many normative acts which often
offer contradictory solutions. The most important of them is Law no. 193/2000 regarding the unfair
terms in the contracts signed between consumers and professionals, which transposes Directive
93/13/EEC.
According to the Romanian law and doctrine in the field of consumer protection, the most
important elements for a term to be considered abusive are the lack of direct contractual negotiation
between the professional and the consumer, the lack of contractual balance and the total ignorance of
the obligation of good faith.
Keywords: unfair terms, contractual negotiation, contractual equilibrium, good faith.
1. The application field of the unfair contract terms theory
The unfair terms issue has finally found its path through Romanian positive
law, mainly in the consumer protection contracts; therefore, in the contractual
relation between a professional and a consumer, we shall apply the special
regulations governing consumer protection, which are quite substantial but also
contradictory, having as result a high number of different normative acts.
The main acts regulating consumer protection in Romania are Law
no. 296/2004 regarding the Consumer Code 1, Governmental Ordinance
This paper has been financially supported within the project entitled “Horizon 2020 - Doctoral
and Postdoctoral Studies: Promoting the National Interest through Excellence, Competitiveness
and Responsibility in the Field of Romanian Fundamental and Applied Economic Research”,
contract number POSDRU/159/1.5/S/140106. This project is co-financed by European Social Fund
through Sectorial Operational Programme for Human Resources Development 2007-2013. Investing
in people!’’
 PhD. Lecturer, Faculty of Law and Administrative Sciences, Ecological University of
Bucharest; e-mail: victor_marcusohn@yahoo.com.
1 Law no. 296/2004 approving a Consumer Code, published in the Official Journal no. 296 of 28
June 2004, republished in the Official Journal no. 224 of 24 March 2008, with modifications and
additions. The existence of this act is intensely criticized in the legal literature, considering it contains
Law Review vol. I, issue 1, Januar
y
-June 2015, p. 22-34
The effects of unfair terms on the binding force principle of contracts 23
no. 21/1992 regarding consumer protection2 and Law no. 193/2000 regarding the
unfair terms in the contracts signed between professionals and consumers3, which
transposed the Unfair Contract Terms Directive 93/13/EEC of 5 April 19934. This
Directive represents the most important measure in order to approximate the laws,
regulations and administrative provisions of the EU Member States regarding
unfair terms in contracts concluded between a seller or supplier and a consumer,
being transposed by every member state of the European Union, even if there have
been some deficiencies, sanctioned by the jurisprudence of the European Court of
Justice5.
On the other hand, provisions on unfair terms can be found in other European
directives on consumer protection 6, which makes it very difficult to have a
complete and unitary knowledge on the field.
The premise of adopting a specific legislation on consumer protection was that
the consumers found themselves in a triple state of inferiority in relation to the
professional: a technical inferiority, because the professionals knows much better
identical provisions with other acts, such as in article 78-81, where it resumes provisions found in Law
no. 193/2000 related to the definition of abusive clauses, the significance of negotiation or cont ractual
transparency. See also, L. Pop, I.-F. Popa, S.I. Vidu, Tratat elementar de drept civil. Obligaiile, Ed.
Universul Juridic, Bucureşti, 2012, p. 161.
2 Republished in the Official Journal no. 208 of 28 March 2007, with modifications and additions.
3 Published in the Official Journal no. 560 of 10 November 2000 and republished in the Official
Journal no. 305 of 18 April 2008, with modifications and additions.
4 In this field of law, there are also indirectly applicable other acts, such as: Law no. 190/1999
regarding mortgage credit for real estate investments, published in the Official Journal no. 611 of 14
December 1999; Law no. 289/2004 regarding the legal regime of credit consumer contracts for
individuals, presently repealed; Law no. 363/2007 regarding the fight against unfair commercial
practice in the relation with consumers and the harmonization of national regulations with the
European legislation on consumer protection, published in the Official Journal no. 899/28.12.2007;
Governmental Ordinance no. 85/2004 regarding the protection of consumers in distance financial
contracts, republished in the Official Journal no. 365 of 13 May 2008; Governmental Emergency
Ordinance no. 50/2010 regarding credit contracts for consumers, published in the Official Journal no.
389 of 11 June 2012; Governmental Emergency Ordinance no. 107/1999 regarding commercialization
of tourism services, republished in the Official Journal no. 448 of 16 June 2008; Governmental
Ordinance no. 130/2000 regarding consumer protection when signing distance contracts, presently
repealed; Law no. 449/2003 on selling contracts, republished in the Official Journal no. 347 of 6 May
2008 etc.
5 For example, cause C-70/03, judgment of the Court (First Chamber) of 9 September 2004.
Commission of the European Communities v Kingdom of Spain; Cause C-372/99 judgement of the Court
(Fifth Chamber) of 24 January 2002, Commission of the European Communities v Italian Republic etc.
6 For example: Council Directive 90/314/EEC of 13 June 1990 on package travel, package
holidays and package tours; Directive 97/7/EC of the European Parliament and of the Council of 20
May 1997 on the protection of consumers in respect of distance contracts etc. Nevertheless, a general
consumer rights directive was finally adopted in 2011: Directive 2011/83/EU of the European
Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive
93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing
Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council.
24 VICTOR MARCUSOHN
than the consumers the products and services they commercialize; an economical
inferiority, considering the professionals have a greater economic force as opposed
to the consumers; a legal inferiority, considering the consumers don’t have any real
possibility to negotiate, being forced to adhere at all the proposals coming from
professionals7.
In order to compensate this state of inferiority, the legislator had foreseen that
any contract signed between a professional and a consumer in order to sell goods
or to offer services, where all or certain terms offered to the consumer are in writ,
the terms must always be drafted in plain, intelligible language. Where there is
doubt regarding the meaning of a term, the interpretation most favorable to the
consumer shall prevail8. Therefore, through these legal provisions, the legislator
enforced an obligation of contractual transparency, in direct connection with the
publicity and information exigencies, specific to consumer law, assuming a
guarantee of the consumer’s right to have a complete understanding of the
contractual provisions which he acknowledges9.
It must be also mentioned that applying the specific legislation of consumer
protection outside consummation relations, considering the mandatory rules, is
strictly forbidden. Therefore, the law imposes certain limitations in using these
special techniques in order to eliminate unfair terms, as they are strictly related to
consumers as natural persons. Accordingly, no matter how significant the
imbalance between two professionals is, the consumer protection legislation is
inapplicable to the legal relation between them.
2. The conditions for a contractual term to be considered unfair
Law no. 193/2000 regarding the unfair terms in the contracts signed between
professionals and consumers establishes in article 1 paragraph 3, the general
obligation incumbent to a professional not to stipulate unfair terms in the contracts
he signs with consumers10. In case of infringement, same act states, at article 13,
that the court, in case of establishing a term as unfair, compels the professional to
modify all adhesion contracts not fully executed yet and also to eliminate all unfair
terms in prewritten contracts, destined to be used in their professional activity.
7 Gh. Stancu, Particularitile raporturilor contractuale, în cadrul dreptului consumului, in “Dreptul”,
no. 2/2009, p. 28.
8 Article 1, paragraph 1 and 2 of Law no. 193/2000 regarding the unfair terms in the contracts
signed between professionals and consumers, republished. The same provisions can be found in
article 75 and 77 of Law no. 296/2004 regarding a Consumer Code.
9 See also L. Pop, I.-F. Popa, S.I. Vidu, Tratat elementar de drept civil. Obligaiile, op. cit, p. 164-166.
The authors consider that breaching this specific obligation has three main effects: it will generate a
contra proferentem interpretation, meaning against the professional who proposed it to the consumer;
the lack of transparency is an important circumstance in the global evaluation of a term as being
unfair; the lack of transparency of the terms defining the main object of the contract, meaning the relation
between quality and price, will have as consequence the elimination of their “immunity” to control, as
unfair terms.
10 This interdiction figures as well in article 78 of Law no. 296/2004 regarding a Consumer Code.
The effects of unfair terms on the binding force principle of contracts 25
Considering the evaluation criteria of a term as unfair, article 4 paragraph 5 of
Law no. 193/2000 establishes that the unfair nature of a contractual term is
evaluated in relation with the nature of products and services, object of the
contract at the time of its conclusion, with all the factors determining the
conclusion of the contract, as well as with any other contractual clauses or even
contracts associated to it. Evaluating the unfair nature of a term is not associated
with defining the main object of the contract, nor with the quality to satisfy price
and payment requests, on one hand, neither with the products and services offered
in exchange, on the other hand, if these terms are drafted in plain, intelligible
language.
According with article 6 and 7 of Law no. 193/2000, the unfair terms in a
contract found either personally or through an entity entitled by law in this regard,
shall not produce any legal consequences on the consumer. In this situation, the
contract will continue only if still possible and only if the consumer agrees. If the
contract can no longer produce any effects, after eliminating the unfair terms, the
consumer is entitled to ask for annulment and damages, if and when applicable.
Moreover, according with articles 13-14 of the same Law no. 193/2000, the
harmed consumers can ask the court to intervene in contract and, if the court
establishes the existence of unfair terms, it can force the professional to modify all
adhesion contracts still in force, as well as to eliminate unfair terms in prewritten
contracts, destined to be used in their professional activity.
After January the 1st 2007, all Romanian Courts are compelled to directly apply
the European Union Law, according with the interpretation given by the European
Court of Justice, which established that the national judge is entitled to appreciate
by default if a contractual term is unfair or not, when deciding on the admissibility
of a request11. In this view, The European Court of Justice considered the objective
established in article 6 of Directive 93/13/EEC, according to which Member States
shall lay down that unfair terms used in a contract concluded with a consumer by a seller
or supplier shall, as provided for under their national law, not be binding on the consumer
and that the contract shall continue to bind the parties upon those terms if it is capable of
continuing in existence without the unfair terms, could not be reached if the consumers
would have to plead themselves the unfair nature of these terms. The protection
system established by the directive starts from the idea that the lack of balance
between the consumer and the professional can be rectified only by a positive,
independent intervention. Therefore, article 7 paragraph 1 of the directive
establishes that Member States shall ensure that, in the interests of consumers and of
competitors, adequate and effective means exist to prevent the continued use of unfair terms
11 See also, ECJ, Judgment of the Court of 27 June 2000, Océano Grupo Editorial SA v Roció
Murciano Quintero (C-240/98) and Salvat Editores SA v José M. Sánchez Alcón Prades (C-241/98),
José Luis Copano Badillo (C-242/98), Mohammed Berroane (C-243/98) and Emilio Viñas Feliú
(C-244/98).
26 VICTOR MARCUSOHN
in contracts concluded with consumers by sellers or suppliers. These means shall include
the right of consumer protection associations to introduce court actions, in order to
establish if a contractual prewritten term is unfair and, if necessary, to forbid them,
even if they were not effectively used in specific contracts. The court’s right to
determine, by default, if a clause is abusive or not, should be considered as an
adequate measure, both for reaching the result aimed by article 6 of the directive to
prevent the individual consumer of being bound by a certain clause, and for
fulfilling the objective of article 7 of the same act, considering the court itself makes
such an analysis, which might have a dissuasive effect, being able to prevent
introducing unfair terms in the contracts signed by professionals and consumers.
Practically speaking, we have to establish the concrete way in which the
consumer can oppose to the professional its personal observation or the
observation made by the authorities, regarding one or more contractual terms
considered unfair, given that the professional has at their disposal contractual or
legal means to ignore this observation or even to determine the consumer to
renounce pleading a term as being unfair or to make him restart executing the term
considered as unfair12.
According with article 4 paragraph 1 of Law no. 193/2000, article 79 of Law
no. 296/2004 regarding a Consumer Code and article 2 paragraph 16 of Governmental
Ordinance no. 21/1992 on the consumer protection, a contractual term which was
not directly negotiated with the consumer, will be considered as unfair if, by itself
or together with other contractual provisions creates, against the consumer and
against the requirements of good faith, a significant imbalance between the rights
and obligations of the parties.
Starting from this definition, the legal literature considers as main conditions
for a term to be considered as unfair: the lack of direct contractual negotiation between
the professional and the consumer, the creation of a significant contractual imbalance
against the consumer, the infringement of the good faith obligation. Besides these
implicit legal requests, some authors observed two additional criteria of evaluating
12 In the Romanian legal doctrine it is considered that such means at the disposal of the
professional lender, who introduced them in the adhesion contract in order to ensure him against
risks of nonperformance of the contract, have an intimidating effect against the consumer, who can no
longer fully realize his right, as guaranteed by article 6 of Law no. 193/2000. For example, if in a bank
credit contract there is an unfair term related to credit costs calculation (interest and poundage), by
considering this term as having no legal effect, the consumer, on the basis of article 6 of Law
no. 193/2000, might refuse to pay the credit, or he might pay only a share of the amount considered
by him as justified. Nevertheless, the contract, considered as enforceable according to banking
legislation, establishes many ways in which the debtor can be sanctioned for non-executing a specific
obligation. For example, not paying a credit cost might lead to penalties, by declaring an early
maturity of the credit. By such a clause, a contract with successive execution is transformed, by the
single will of the bank, in a contract with imediat execution. For more information, see also Gh.
Piperea, Teoria clauzelor abuzive. Relaia cu ordinea public şi abuzul de drept,
http://www.piperea.ro/articol/despre-clauzele-abuzive-din-contractele-de-credit-bancar/.
The effects of unfair terms on the binding force principle of contracts 27
a clause as being abusive or not, meaning the terms considered as abusive, listed in
the annex of Law no. 193/2000 and the other relevant circumstances, established
by article 4 point 5 of the same act.
2.1. The lack of direct contractual negotiation between the professional and
the consumer
According with article 4 paragraphs 2 and 3, first thesis, of Law no. 193/2000,
“a contractual term shall always be regarded as not individually negotiated where
it has been drafted in advance and the consumer has therefore not been able to
influence the substance of the term, particularly in the context of a pre-formulated
standard contract or general sale conditions used by the seller or supplier on the
market. The fact that certain aspects of a term or one specific term have been
individually negotiated shall not exclude the application of this article to the rest of
a contract if an overall assessment of the contract indicates that it is nevertheless a
pre-formulated standard contract, established as such by the professional”.
Therefore, the law establishes the criterion of the inability by a consumer to
influence the content of a contractual term, criterion of identification for
contractual abuse 13 . Thus, for this kind of contracts, we might speak of a
presumption of economic power abuse, presumption which can be overthrown by the
professional if proving an effective contractual negotiation 14 , meaning a real
possibility from both parties to commonly establish the content of the contract and
not just simple, informal discussions on certain contractual clauses15. In this view,
according to article 4 paragraph 3, second thesis, of Law no. 193/2000, „if a
professional claims that a standard term has been individually negotiated, the
burden of proof in this respect shall be incumbent on him”.
According to article 4 paragraph 6 of Law no. 193/2000, the assessment of the
unfair nature of the terms shall relate neither to the definition of the main subject
matter of the contract nor to the adequacy of the price and remuneration, on the
one hand, as against the services or goods supplies in exchange, on the other, in so
far as these terms are in plain intelligible language. Starting from these provisions,
the doctrine extracted four main consequences, respectively: the burden of proof if
a standard term has been individually negotiated is incumbent to the professional;
a negotiated term shall not make object of the unfairness control, even if eventually
the term is proved to be unfair; if certain clauses were negotiated, the unfairness
13 L. Pop, I.-F. Popa, S.I. Vidu, Tratat elementar de drept civil. Obligaiile, op. cit, p. 163-164.
14 F. Prip, Aprecierea caracterului abuziv al clauzelor contractelor de consum, în Consumerismul
contractual. Repere pentru o teorie general a contractelor de consum, coordonator P. Vasilescu, Ed. Sfera
Juridic, Cluj-Napoca, 2006, p. 129.
15 Gh. Piperea, Teoria clauzelor abuzive. Relaia cu ordinea public şi abuzul de drept,
http://www.piperea.ro/articol/despre-clauzele-abuzive-din-contractele-de-credit-bancar/, op.cit.
28 VICTOR MARCUSOHN
control extends over other non-negotiated contractual terms; the terms defining the
main object of the contract are excluded from the unfairness control16.
2.2. The significant contractual imbalance against the consumer
As we have already shown, the second main condition for a term to be
considered as unfair is represented by the creation of a significant contractual
imbalance affecting the consumer. Because the “significant imbalance” notion is
not clearly defined by Law no. 193/2000, the legal literature is home to many
controversies on the criteria to determine such an imbalance, as well as on its
characteristics. Therefore, in determining the imbalance as being significant, it is
stated that it should be taken into account either a simple mathematic rapport, or the
criterion of an economic imbalance or even the criterion of a legal imbalance,
considered as the true legal criteria in determining a term as abusive or not17.
On the other hand, the significant imbalance might be subjective or objective18.
Therefore, speaking of an economic imbalance, even though considered as having
an objective character 19 , in quantifying the balance between the rights and
obligations of the parties, all circumstances related to the signing of a contract
should be considered, either objective or subjective20., being appreciated as such in
concreto by the judge, in report to an ideal balance.
The Romanian High Court of Cassation and Justice has stated that in order to
observe the unfairness of a contractual term, it should be established an objective
analysis of a clause, meaning to create a significant imbalance between the rights
and obligations of the parties, against the consumer and subjectively it should lack
the obligation of good faith21.
2.3. The infringement of the obligation of good faith
Another essential condition for a contractual term to be considered as unfair
consists in the infringement of the obligation of good faith. As shown in the legal
literature, the solution adopted by Directive 93/13/EEC on the requirement of
16 L. Pop, I.-F. Popa, S.I. Vidu, Tratat elementar de drept civil. Obligaiile, op. cit., p. 164.
17 Idem, p. 166.
18 I. Fl. Popa, Reprimarea clauzelor abuzive, în Pandectele Române nr. 2/2004, p. 208-209.
19 Gh. Piperea, Teoria clauzelor abuzive. Relaia cu ordinea public şi abuzul de drept,
http://www.piperea.ro/articol/despre-clauzele-abuzive-din-contractele-de-credit-bancar/, op. cit.
20 See also, E. Poillot, Droit européen de la consommation et uniformisation du droit des contrats,
foreword by P. de Vareilles-Sommieres, LGDJ, Paris, 2006, nr. 2006, nr. 273 şi urm., p. 138 şi urm.
21 I.C.C.J., Second Civil Section, Decision no. 833/23.02.2008. On the other hand, in another
judgement, the High Court stated the opposite: “the terms alleged by the plaintiff cannot be
considered as unfair, because from an objective point of view there is no significant imbalance
between the rights and obligations of the parties, against the consumer, but this imbalance might be
created against the insurer, if cancelling these terms as unfair, considering that, from a subjective
point of view, he didn’t act in bad faith. On the contrary, the insurer claims its own negligence in
non-observing a fully admitted jurisprudential rule, adjoined to the law by equity and custom”. See
I.C.C.J., Second Civil Section, Civil Decision no. 3440/01.11.2007.
The effects of unfair terms on the binding force principle of contracts 29
good faith is taken from German law, especially from the Law on general business
conditions from 9th December 1976 22 , being crystalized on the idea of an
“autonomous” interpretation of the good faith concept, identified and applied
according to the law and not according with the perspective given by each national
legal systems23. Thus, in the preamble of Directive 93/13/EEC it is stated that the
assessment, according to the general criteria chosen, of the unfair character of
terms, in particular in sale or supply activities of a public nature providing
collective services which take account of solidarity among users, must be
supplemented by a means of making an overall evaluation of the different interests
involved. This constitutes the requirement of good faith. Moreover, in making an
assessment of good faith, particular regard shall be had to the strength of the
bargaining positions of the parties, whether the consumer had an inducement to
agree to the term and whether the goods or services were sold or supplied to the
special order of the consumer. The requirement of good faith may be satisfied by
the seller or supplier where he deals fairly and equitably with the other party,
whose legitimate interests he has to take into account. Therefore, the simple
stipulation of unfair terms in the consummation contracts might be associated with
the idea of bad faith, which can be qualified, at its turn, as an illicit cause24,
sanctioned with absolute nullity25.
2.4. The “black list” criteria of abusive clauses
Besides the three criteria established in the unfair terms definition from article
4 paragraph 1 of Law no. 193/2000, the legal literature26 identifies a fourth one,
given that the law provedis a guiding non-exhaustive list, found in the annex,
which exemplifies the terms which might considered as unfair27. It should be also
mentioned that by simply enclosing a contractual term in the list from the annex to
22 See also, B. Jaluzot, La bonne foi dans les contrats. Étude comparative de droit français, allemand et
japonais, Dalloz, Paris 2001, p. 41, as cited by L. Pop, I.-F. Popa, S.I. Vidu, Tratat elementar de drept civil.
Obligaiile, op. cit, p. 167.
23 L. Pop, I.-F. Popa, S.I. Vidu, Tratat elementar de drept civil. Obligaiile, op. cit., loc. cit.
24 I. Fl. Popa, Reprimarea clauzelor abuzive, în Pandectele Române nr. 2/2004, op. cit., loc. cit.
25 According with article 1238 paragraph 2 of the Civil Code: “An illicit or immoral cause is
sanctioned with absolute nullity if it is commune or, on the contrary, if the other partie knew about its
existence or, should have known it”.
26 L. Pop, I.-F. Popa, S.I. Vidu, Tratat elementar de drept civil. Obligaiile, op. cit., p. 167.
27 The issue related to this criterion is if, once included in the list of unfair terms, a clause should
be automatically declared as unfair or not? Thus, from the point of view of transposing the directive,
the majority of Member States adopted the list as an exemplificative annex and not as an imperative
one (the gray letter rule), so that any term found in the annex shall be presumed as unfair, without
being automatically unfair (for example, France, Great Britain, Ireland and Poland). Other states
adopted an imperative list (the black letter rule), so that by simply putting a term in the list, it means
the term is considered as abusive (for example, Austria, Belgium, Greece, Luxembou rg). Finally, some
states (Germany, Italy, Portugal and Hungary) chose mixed transposal systems, both with black lists
and gray lists. See, L. Pop, I.-F. Popa, S.I. Vidu, Tratat elementar de drept civil. Obligaiile, op. cit., p. 167.
30 VICTOR MARCUSOHN
the law, doesn’t make it automatically unfair. The authority entitled to analyze this
character is the court. Besides, according to the preamble of Directive 93/13/EEC,
the list of terms in the annex is just a guidance list, their field of application being
subject to expansions or restrictions, according with the applicable law of every
Member State.
However, the list of unfair terms offered by Law no. 193/2000 is quite
comprehensive28, respectively:
a) Terms enabling the professional to unilaterally alter certain contractual
clauses: the right of the professional to alter unilaterally without a valid reason any
characteristics of the contract. It should be mentioned that these provisions do not
oppose to: terms by which a supplier of financial services reserves the right to
modify the rate of the interest payable by the consumer or owned to the consumer
or the value of other taxes for financial services, without a written notice, if there is
a well-founded motivation, considering the professional should inform as soon as
possible the other contractual parties, which are allowed to immediately terminate
the contract; terms by which the professional reserves the right to unilaterally alter
the clauses of an undetermined duration contract, considering the obligation of the
professional to inform the consumer in due time, by written notice, so that the
consumer might be allowed to terminate the contract; the right of the professional
to alter unilaterally without a valid reason any characteristics of the product or
service to be provided or the delivery date of a product or the execution date of a
service;
b) Terms excluding or hindering the consumer's right to take legal action or
exercise any other legal remedy: excluding or hindering the professional liability
of the professional in case of consumer’s injury or death, as a result of an action or
omission of the professional in using products or services; the right of the
professional to transfer his rights and obligations under the contract, to a third
party – agent, mandatory, etc., where this may serve to reduce the guarantees for
the consumer, without the latter's agreement;
c) Terms imposing discretionary obligations to the consumer or restraining
his rights: the obligation of the consumer to be irrevocably bound by terms upon
which he had no real opportunity of becoming acquainted before the conclusion of
the contract; the obligation of the consumer to fulfil all his obligations where the
professional does not perform theirs; inappropriately excluding or limiting the
legal rights of the consumer vis-à-vis the professional or another party in the event
of total or partial non-performance or inadequate performance by the professional
of any of the contractual obligations, including the option of offsetting a debt owed
to the seller or supplier against any claim which the consumer may have against
him; the obligation requiring the consumer to take disputes exclusively to
28 For other classifications, see also L. Pop, I.-F. Popa, S.I. Vidu, Tratat elementar de drept civil.
Obligaiile, op. cit., p.168.
The effects of unfair terms on the binding force principle of contracts 31
arbitration; the interdiction for the consumer to compensate any debts towards the
professional with claims he might have against the latter;
d) Terms granting discretionary rights for the professional: the right of the
professional to automatically extend a contract of fixed duration where the
consumer does not indicate otherwise, when the deadline fixed for the consumer
to express the intention to not extend the contract is unreasonably early; the right
of the professional to determine whether the goods or services supplied are in
conformity with the contract; the exclusive right of the professional to interpret any
term of the contract; the right of the professional to retain sums paid by the
consumer where the latter decides not to conclude or perform the contract, without
providing for the consumer to receive compensation of an equivalent amount from
the seller or supplier where the latter is the party cancelling the contract; the right
of the professional to dissolve the contract on a discretionary basis where the same
facility is not granted to the consumer; the right of the professional to retain the
sums paid for services not yet supplied by him when the seller or supplier himself
dissolves the contract; the right of the professional to terminate a contract of
indeterminate duration without reasonable notice except where there are serious
grounds for doing so. These final provisions do not oppose to terms by which the
supplier of financial services reserves his right to unilaterally dispose the
termination of an indeterminate duration contract without serious grounds to do
so, on the condition that the supplier immediately informs other contractual
parties.
e) Terms related to some restrictions: imposing unjustified restrictions in
managing consumers providing or requesting supplementary evidence which,
according to the law, is object to other parts of the contract;
f) Terms related to product prize: providing for the price of goods to be
determined at the time of delivery or allowing a seller of goods or supplier of
services to increase their price without in both cases giving the consumer the
corresponding right to cancel the contract if the final price is too high in relation to
the price agreed when the contract was concluded. These provisions do not oppose
the price indexation clauses, as long as they are legal, on the condition of explicitly
explaining the method by which the prices fluctuate.
It should be mentioned that terms related to: the right of the professional to
alter the terms of the contract unilaterally without a valid reason which is specified
in the contract, determining the price of goods at the time of delivery or allowing a
seller of goods or supplier of services to increase their price without in both cases
giving the consumer the corresponding right to cancel the contract if the final price
is too high in relation to the price agreed when the contract was concluded,
respectively the right of the professional to terminate a contract of indeterminate
duration without reasonable notice except where there are serious grounds for
doing so, do not apply to:
32 VICTOR MARCUSOHN
- transactions in transferable securities, financial instruments and other
products or services where the price is linked to fluctuations in a stock exchange
quotation or index, or a financial market rate that the seller or supplier does not
control;
- contracts for the purchase or sale of foreign currency, traveler’s checks or
international money orders denominated in foreign currency.
3. A few considerations on the legal effects of unfair terms
From a sanctioning point of view, the legal regime applicable to unfair terms is
slightly unclear. Thus, according to article 6 paragraph 1 of Directive 93/13/EEC,
the unfair terms used in a contract concluded with a consumer by a seller or
supplier shall, as provided for under their national law, not be binding on the
consumer and that the contract shall continue to bind the parties upon those terms
if it is capable of continuing in existence without the unfair terms. Member States
shall take all legal necessary measures so that an unfair term does not become
binding for the consumer. Therefore, after eliminating it, the rest of the contract
should remain mandatory for all parties.
Also, the transposal text of these provisions in Romanian law does not offer
enough clues in order to establish the precise applicable sanction for an unfair term.
Thus, according with article 6 of Law no. 193/2000, “the unfair terms in a contract,
ascertained either personally, either by the competent authorities, shall not
produce any effects on the consumer; the contract might continue, only if possible
after eliminating the unfair terms, with consumer’s approval,”.
Even though the legal literature supported both the idea of an absolute nullity
for the unfair terms29 and of considering them as unwritten terms30, we believe the
only appropriate sanction in this case is absolute nullity.
In case of establishing a term as unfair, the sanction is absolute partial nullity,
because an absolutely null unfair term does not necessarily affect the validity of the
entire contract. Only if, after eliminating the unfair term/terms, the contract can no
longer produce any effects, the nullity will expand to all contractual clauses. In any
case, the unfair terms can be either completely eliminated from the contract, either
replaced with clauses compatible with consumer protection law. This solution
result implicitly from article 13 and 14 of Law no. 193/200031.
29 See also, C. Toader, A. Ciobanu, Un pas important spre integrarea european: Legea nr. 193/2000
privind clauzele abuzive, OG nr. 87/2000 privind rspunderea producatorilor şi O.U.G. 130/2000 privind
contractele la distan, Revista de Drept Comercial nr. 3/2001, p. 78; I. Fl. Popa, Reprimarea clauzelor
abuzive, in “Pandectele Române” no. 2/2004, op. cit., p. 231.
30 See also, J. Goicovici, Dreptul consumaiei, Ed. Sfera Juridic, 2008, p. 79 şi urmt.
31 The Romanian Constitutional Court seized with an exception of unconstitutionality of article 13
paragraph 1 and 2 of Law no. 193/2000 has rejected the exception by Decision no. 1.535/17.11.2009,
stating that: „either seized directly by the consumer, either by the representatives of the National
Authority for Consumer Protection or by other authorized specialists from public authorities
administration, the court is the only authority entitled to decide on the existence of an unfair term in a
The effects of unfair terms on the binding force principle of contracts 33
On the other hand, the legislator stipulated at article 7 of Law no. 193/2000,
that if the contract can no longer produce any effects after the elimination of the
unfair terms, the consumer is entitled to ask for the termination of the contract,
with damages, when applicable. This legal text was highly criticized by the
doctrine, who considered it as an “almost illegal” translation of the corresponding
text of the directive32. In fact, the applicable sanction should be nullity and not
annulment or rescission, because introducing an unfair term in a contract is not
equivalent with the non-execution of a contractual obligation but with the
infringement of a prohibitive provision33.
In any case, in support of the idea that unfair terms are sanctioned with
absolute nullity comes the protection character of a general public interest, as
guaranteed by the legislation regulating consumer protection, doubled by the fact
that representatives from the National Agency for Consumer Protection may
observe by default the existence of unfair terms in contracts concluded between
professionals and consumers. Therefore, the latter are legally entitled to ask the
court to compel the professionals to modify existing contracts, by eliminating
unfair terms or they can even enforce contraventional sanctions34.
References:
[1] J. Goicovici, Dreptul consumaiei, Ed. Sfera Juridic, 2008;
[2] B. Jaluzot, La bonne foi dans les contrats. Etude comparative de droit francais, allemand et
japonais, Dalloz, Paris 2001;
[3] Gh. Piperea, Teoria clauzelor abuzive. Relaia cu ordinea public şi abuzul de drept,
http://www.piperea.ro/articol/despre-clauzele-abuzive-din-contractele-de-credit-bancar/.
[4] E. Poillot, Droit europeen de la consommation et uniformisation du droit des contrats,
forward by P. de Vareilles-Sommieres, LGDJ, Paris, 2006 ;
[5] L. Pop, I.-F. Popa, S.I. Vidu, Tratat elementar de drept civil. Obligaiile, Ed. Universul
Juridic, Bucureşti, 2012;
[6] I. Fl. Popa, Reprimarea clauzelor abuzive, în Pandectele Române nr. 2/2004;
contract. The Court establishes that, in the first hypothesis, the professional can be hold responsible
under civil tort liability, according with the provisions of the Civil Code while, in the second
hypothesis, according with the provisions of article 13 together with article 16 of Law no.193/2000,
the responsibility has a contractual nature, the act being sanctioned with a contraventional fine. Even
though the act by which the court is seized is different, depending on the consumer’s choice, this
doesn’t alter the right of the professional to defend themselves. In front of the court, the parties are
equally entitled to exercise their procedural guarantees, by defending themselves as they consider
appropriate”.
32 I. Fl. Popa, Reprimarea clauzelor abuzive, în Pandectele Române nr. 2/2004, op. cit., p. 214.
33 C. Toader, A. Ciobanu, Un pas important spre integrarea european: Legea nr. 193/2000 privind
clauzele abuzive, O.G. nr. 87/2000 privind rspunderea producatorilor şi O.U.G. no. 130/2000 privind contrac-
tele la distan, op. cit., p. 74-78.
34 According with the provisions of article 16 of Law no. 193/2000 regarding the unfair terms in
the contracts signed between consumers and professionals.
34 VICTOR MARCUSOHN
[7] F. Prip, Aprecierea caracterului abuziv al clauzelor contractelor de consum, în
Consumerismul contractual. Repere pentru o teorie general a contractelor de consum, coordonator
P. Vasilescu, Ed. Sfera Juridic, Cluj-Napoca, 2006;
[8] Gh. Stancu, Particularitile raporturilor contractuale, în cadrul dreptului consumului,
Dreptul nr. 2/2009;
[9] C. Toader, A. Ciobanu, Un pas important spre integrarea european: Legea nr. 193/2000
privind clauzele abuzive, O.G. nr. 87/2000 privind rspunderea producatorilor şi O.U.G. nr. 130/2000
privind contractele la distan, Revista de Drept Comercial nr. 3/2001.