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Abusive clauses

Abusive clauses in ecommerce

If you have an ecommerce, you probably have Contract or Purchase Conditions for the type of products or services you sell. Let me explain what you must consider so as not to use abusive clauses that may involve the imposing of fines, even without a complaint. Yes, you read that right…

First of all, what are the consequences of using abusive clauses? 

The use of abusive clauses may result in non-compliance with Consumer and User Protection regulations and, consequently, the possible imposing of fines by the consumer authorities of the regional governments with authority in this area; in the case of Catalonia, the Catalan Consumer Agency.

It should be noted, as we said, that a complaint from a customer or consumer does not necessarily mean that the consumer authorities will start inspections. In fact, in Catalonia, the Catalan Consumer Agency regularly inspects ecommerce (among other sectors) to assess the degree of compliance with current regulations.

These actions are published in advance on their website and, yes, they can end up in fines, €4000 being commonplace in the matter of abusive clauses.

In addition to possible fines, abusive clauses are null and void and are therefore considered unenforceable.

When does the regulation on abusive clauses apply? 

As a general rule, the regulations on unfair terms apply where there is a contract between a company and end consumers, not in a contract between companies or between a company and a professional. We are essentially talking about B2C e-commerce.

Additionally, the regulations on abusive clauses are applied when these are included in conditions not individually negotiated, in other words in the General Conditions of Purchase or Contract that consumers accept during the purchase or contract processes, without the possibility of negotiation.

What kind of clauses are there? 

The regulations provide for up to 6 main groups of abusive clauses: 

  • Those that bind the contract to the will of the employer: for example, they provide for disproportionately high compensation if the consumer does not comply or provide for indicative dates dependent on the employer. 
  • Those that limit the consumer’s basic rights: for example, in terms of guarantees or the right of withdrawal. We talked about this in this post
  • Those that involve a lack of reciprocity between the parties: for example, authorising the company to terminate the contract if the consumer is not given the same right. 
  • Clauses on guarantees
  • Contract performance clauses: how to impose unsolicited goods or services. 
  • Clauses on jurisdiction and applicable law: how to compel the consumer to report to the address of the company. 

Therefore, knowing the type of abusive clauses that exist and avoiding them in your Purchase or Contract Conditions is, without a doubt, a good way of avoiding claims and possible inspections. 

If you need more information on this or any other topic, contact us

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