Unfair terms are those which limit or attempts to limit the rights of a counterparty in a contract. In particular, in consumer contracts unfair terms can create significant imbalances in the rights and obligations of consumers on the one hand and sellers and suppliers on the other hand.
For example, clauses that foresee high penalties for consumers in case of non-fulfilment are unfair.
“Grey and black lists”
The Consumption Code at article 33 includes the grey and black lists of clauses that can be unfair until proven otherwise by the professional, who shall demonstrate that the clause does not create a severe imbalance contrary to good faith or that the clause has been negotiated individually.
For example, some unfair clauses of the grey list are:
1. the exclusion or limitation of the professional’s liability in case of death or personal injury;
2. the exclusion or limitation of consumer’s rights in case of non-fulfilment by the professional;
3. to allow the professional to keep an amount of consumer’s money is this latter does not sign the contract or redress from it, without foreseeing the possibility for the consumer to ask the double in case of non fulfilment or partial fulfilment by the professional.
Article 36 of the Consumption Code includes the black list of clauses which are always unfair, even if individually negotiated, and which can:
1. exclude or limit the professional’s liability in case of death or personal injury;
2. exclude or limit consumer’s actions against the professional in case of non or partial fulfilment;
3. foresee the consumer’s agreement to clauses he did not know before signing the contract.
UNFAIR COMMERCIAL PRACTICES
A practice is unfair when it is false or attempts to influence the consumer’s behaviour in relation to the purchase of a product/service.
There a two types of unfair practices:
Practices that contain false or incorrect information about the features of a product, that can lead the consumer to make a decision he would have not made in other circumstances.
A practice is misleading also if it omits, hides or presents in misleading ways relevant information the consumer needs to make a decision .
Article 23 of the Consumption Code considers misleading practices:
- when a professional affirms to adhere to a conduct code when it is not true;
- when a professional displays a quality trustmark without authorization;
- when a professional does not explain why a product should be bought at a specific price
Actions that can influence the consumer’s decision through violent behaviours.
Article 26 of the Consumption Code considers always aggressive practices where:
- there is the impression that the consumer cannot leave the professional’s premises until he has signed the contract;
- the professional visit the consumer even if the consumer invites him not to do so;
- the professional sends several and unsolicited reminders by phone, email or fax