In most standard contracts, the scales are tipped in favour of the economically strongest party, which imposes terms in its favour. Faced with "unfair terms", how can the affected party react and succeed injustice? The book Les clauses abusives et illicites dans les contrats usuels (1) (Unfair and unlawful terms in common contracts) was published following a symposium organised by the Young Bar Association of Liège, chaired by Benoît Khol. It offers wide-ranging insight into specific regulations that apply to all unlawful and unfair terms in employment, rental, mobile phone,  energy supply contracts, ...  

The energy supply and mobile phone industries both abound with very tempting promotional offers. This highly competitive situation was caused by the arrival of big new companies trying to acquire their share of the pie by lowering their prices. But despite attractive offers, the number of disputes has arisen. Do consumers actually have any recourse when they are bound by contracts with disadvantageous terms, or terms they were unaware of? What are their rights and obligations once they have signed an agreement? Cécile Delforge, a lawyer at the Liège Bar and Assistant in Law of Obligations at the University of Liège, deals with these questions and others in her contribution entitled Les clauses abusives dans les contrats de téléphonie et de fourniture d'énergie conclus avec des consommateurs (Unfair terms in phone and energy supply contracts concluded with consumers).

Regulation of unfair terms: the blacklist and the general standard

Contract terms are considered unfair when they create an obvious imbalance between the rights and obligations of the parties, to the detriment of the consumer. When there are ambiguities or questionable terms, the interpretation should be done in favour of the consumer. Unfair terms will then be deemed invalid. However, the contract containing the unfair terms will not be necessarily be entirely invalidated. The unfair terms will simply be removed from the contract. Cancellation of the entire contract will only occur if the unfair terms were the very essence of the contract.   

When the contract is being signed, the company is obligated to provide the consumer with clear and specific information about the sold product, including general terms and conditions. The consumer must be aware of or can reasonably deemed to have been aware of the contractual terms no later than the conclusion of the contract. Failing that, the terms are non-binding. "To get around this difficulty, consumer contracts often contain accession clauses in which consumers acknowledge having read the company's general terms and conditions or having received a copy, and accepted them," says Cécile Delforge. In this regard, terms of a telephone service contract in which a consumer acknowledges having read the general terms and conditions, but must actually visit the operator's website or call a special number to do so, violate the obligation of the company to provide the consumer with sufficient information .

The blacklist

In order to check whether terms are potentially unfair, a consumer must first consult the blacklist established by article 74 of the Trade Practices and Consumer Protection Act (LPMC). This list includes thirty-three contract terms of combinations of terms which are considered unfair in all circumstances, "over which judges have no discretionary power," notes Cécile Delforge. These thirty-three cases relate to contract formation, duration, non-execution, unilateral changes by the company, etc.

In terms of contract duration, terms that "commit the consumer to an indefinite time period, without specifying a reasonable termination period" are unfair. Furthermore, specific legislation governs the duration of telephone and energy supply contracts. In particular, telephone service providers may not conclude contracts with an initial duration exceeding 24 months. Service providers are also required to offer their clients at least one contract lasting no longer than 12 months.

(1) Les clauses abusives et illicites dans les contrats usuels, Anthémis, 2013