Abusive clauses, adhesion contracts, consumer law, contract law, Civil Code, significant imbalance, non-negotiable clauses, law of obligations
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Abstract
Contents
Extract
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Abstract
The introduction of a mechanism to fight abusive clauses in adhesion contracts under common law, inspired by consumer law, and its implications on contract law.
Contents
The scope of application of the control of abusive clauses
The introduction in common law of a mechanism to fight abusive clauses inspired by consumer law in adhesion contracts
The articulation between common law and special laws
The notion of abusive clause
An abusive clause creating a significant imbalance
The sanction of the abusive clause also generating an imbalance
Analysis of the notion of significant imbalance
The scope of application of the control of abusive clauses
The introduction in common law of a mechanism to fight abusive clauses inspired by consumer law in adhesion contracts
The articulation between common law and special laws
The notion of abusive clause
An abusive clause creating a significant imbalance
The sanction of the abusive clause also generating an imbalance
Analysis of the notion of significant imbalance
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Extract
[...] Abusive Clauses Since the Reform of the Law of Obligations Abusive clauses constitute an abuse of contractual freedom. In general, imposed by one party on the other, the clause translates 'the excess of power' of the strong contractual party and translates the contractual imbalance. The fight against abusive clauses first organized itself in special law before entering the Civil Code by the reform of the law of obligations introduced by the reform order of 10 February 2016. An order that intervened in order to modernize the law of obligations which had remained unchanged since the Civil Code of 1804 and which had therefore become somewhat outdated at a time when society had profoundly transformed. [...]
[...] There is then no restriction based on the party that has unilaterally determined the disputed clauses, unlike what is found in Article L.212-1 of the Consumer Code which only refers to the "imbalance found to the detriment of the consumer" or in matters of competition in Article L.446-6 of the Commercial Code which, by penalizing the act of "submitting or attempting to submit", demonstrates the unilateral nature. Consequently, nothing would prevent, on the basis of common law, the action seeking to have the abusive clause declared unwritten from being brought by the party that determined the content of the contract. [...]
[...] Despite these difficulties in assessment, the legislator has chosen a sanction that, a priori, does not present any difficulty. The sanction of the abusive clause also generating an imbalance Article 1171 of the Civil Code resulting from the reform of the law of obligations is particularly clear: the sanction for the abusive clause creating a significant imbalance will be to consider this clause as 'deemed not written'. The use of this sanction makes it possible to save the contract, because it will be only the abusive clause that will disappear, the contract itself will continue to exist and remain. [...]
[...] The adhesion contract is defined by Article 1110 of the Civil Code, issued by the ratification law of April 2018. According to this article, it is a contract that 'contains a set of non-negotiable clauses, determined in advance by one of the parties.' Initially, this was not the definition that was present, since the Civil Code did not speak of non-negotiable and predetermined clauses, but of 'general conditions' that were exempt from negotiation and determined in advance by one of the parties. [...]
[...] In other words, the clause will have the effect of breaking the contractual balance. Finally, the common law article only reiterates what already existed in Article L.212-1 of the Consumer Code and L.446-6 of the Commercial Code. However, the way of approaching the significant imbalance is not the same in the different devices. For example, in consumer law, the texts are very clear and explain that the significant imbalance must be assessed in light of all the other clauses that make up the contract. [...]
