Each of us has often found ourselves entering into a contract with a business. As we know, the business is the stronger party in the contract due to their knowledge and skills, while we, as consumers, are the weaker party. The Civil Code contains a number of provisions relating to the conclusion of contracts and, consequently, to protecting consumers from dominant businesses. So what should we pay attention to? What should not be included in a contract?
The greatest source of danger is unfair contractual clauses. According to Article 3851 of the Civil Code, these are provisions that apply only to the entrepreneur and the consumer and have been inserted by the entrepreneur into the contract. They are contrary to good practice and grossly violate the interests of the other party. Abusive contractual clauses apply only to contacts between entrepreneurs and consumers, not between entrepreneurs. They also do not apply to situations involving two private individuals, and the contract has nothing to do with their business or professional activities. This is because the consumer, in a relationship with the entrepreneur, is the weaker party who must be protected. However, in contracts concluded between entrepreneurs, both parties are equal. Therefore, the parties can shape their contracts as they see fit, as professionals possess the appropriate knowledge and qualifications to conclude such contracts, which is assumed to be knowledgeable about which provisions could be unfavorable to them. Giving preference to one of the entrepreneurs would constitute a violation of the principles of fair competition.
Prohibited clauses are associated with standard contract forms. In such cases, the consumer should carefully analyze the contract to ensure that the obligations imposed on them and the rights they are entitled to are not formulated in a manner that is unfavorable to them. With standard contract forms, the other party, the consumer, enters into an adhesion contract—there is no possibility of amending its content. Therefore, the legislator has undertaken to protect the weaker party and introduced into the Civil Code the institution of prohibited contractual clauses, which, as the name suggests, cannot be included in a contract. These are listed in Article 3853 of the Civil Code, but this list is not exhaustive. If a provision raises doubts about its compliance with the law and is not listed in Article 3853, the issue can be brought to court. Examples of such clauses include provisions that:
- exclude or limit liability towards the consumer for personal injury;
- exclude or significantly limit liability towards the consumer for non-performance or improper performance of an obligation;
- make the conclusion of the contract dependent on the consumer's promise to conclude further contracts of a similar type in the future;
- make the conclusion, content or performance of a contract dependent on the conclusion of another contract that has no direct connection with the contract containing the provision in question;
- exclude the obligation to return to the consumer the payment made for the performance not fulfilled in whole or in part, if the consumer decides not to conclude the contract or perform it.
What should a consumer do if they encounter a contract containing unfair terms? The first and least complicated solution is to draw the entrepreneur's attention to the defective provisions. It may be possible to amend the terms of a future contract. It is worth seeking the services of a lawyer to avoid oversights and eliminate any doubts regarding the content of the contract. The consumer also has the right to appeal to the Court of Competition and Consumer Protection, where the court will declare the provisions unfair. This is an abstract review, because the person filing the appeal does not have to be bound by the contract. If the entrepreneur nevertheless requires the consumer to comply with these provisions, the consumer can appeal to the court under an incidental review. This differs from an abstract review in that the specific contract entered into by the entrepreneur with the consumer is examined. Of course, the court's recognition of contractual provisions as unfair does not render the entire contract invalid. Only the inconsistent provisions are not binding on the consumer, while the remaining provisions remain valid. If the consumer has already signed the contract, he or she has the right to apply to a common court to declare the provisions in question non-binding.
Furthermore, compliance checks of standard contracts with generally applicable regulations are carried out regularly, and the list is available on the UOKiK website. The Office, as well as municipal and district competition ombudsmen, non-governmental organizations, and consumers, have the right to file lawsuits with the Court of Competition and Consumer Protection. Consumers can also file a complaint with the Office. Appropriate measures are then taken to investigate whether the interests of not only the consumer who filed the complaint have been violated, but also the collective interests of all persons who could potentially enter into a contract with a given entrepreneur. The Office orders the entrepreneur to conduct a specific course of action, and if the entrepreneur fails to comply, they may be fined.
As mentioned above, unfair terms are often included in agreements between businesses and consumers. In such cases, it's worth carefully reviewing the agreement for compliance with applicable regulations. If unfair terms are identified, consult with the business owner and, if agreement cannot be reached, pursue legal action.
