Appendix II

National Legislation

The Unfair Contract Terms Act 1977 (UCTA)

PART I AMENDMENT OF LAW FOR ENGLAND AND WALES AND

NORTHERN IRELAND

1 Scope of Part I

(1)For the purposes of this Part of this Act, ‘negligence’ means the breach—

(a)of any obligation, arising from the express or implied terms of a contract, to take reasonable care or exercise reasonable skill in the performance of the contract;

(b)of any common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty);

(c)of the common duty of care imposed by the Occupiers’ Liability Act 1957 or the Occupiers’ Liability Act (Northern Ireland) 1957.

(2)This Part of this Act is subject to Part III; and in relation to contracts, the operation of sections 2 to 4 and 7 is subject to the exceptions made by Schedule 1.

(3)In the case of both contract and tort, sections 2 to 7 apply (except where the contrary is stated in section 6(4)) only to business liability, that is liability for breach of obligations or duties arising—

(a)from things done or to be done by a person in the course of a business (whether his own business or another’s); or

(b)from the occupation of premises used for business purposes of the occupier;

and references to liability are to be read accordingly but liability of an occupier of premises for breach of an obligation or duty towards a person obtaining access to the premises for recreational or educational purposes, being liability for loss or damage suffered by reason of the dangerous state of the premises, is not a business liability of the occupier unless granting that person such access for the purposes concerned falls within the business purposes of the occupier.

(4) In relation to any breach of duty or obligation, it is immaterial for any purpose of this Part of this Act whether the breach was inadvertent or intentional, or whether liability for it arises directly or vicariously.

2 Negligence liability

(1) A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.

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(2)In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness.

(3)Where a contract term or notice purports to exclude or restrict liability for negligence a person’s agreement to or awareness of it is not of itself to be taken as indicating his voluntary acceptance of any risk.

3 Liability arising in contract

(1)This section applies as between contracting parties where one of them deals as consumer or on the other’s written standard terms of business.

(2)As against that party, the other cannot by reference to any contract term—

(a)when himself in breach of contract, exclude or restrict any liability of his in respect of the breach; or

(b)claim to be entitled—

(i)to render a contractual performance substantially different from that which was reasonably expected of him, or

(ii)in respect of the whole or any part of his contractual obligation, to render no performance at all,

except in so far as (in any of the cases mentioned above in this subsection) the contract term satisfies the requirement of reasonableness.

4 Unreasonable indemnity clauses

(1)A person dealing as consumer cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.

(2)This section applies whether the liability in question—

(a)is directly that of the person to be indemnified or is incurred by him vicariously;

(b)is to the person dealing as consumer or to someone else.

5 ‘Guarantee’ of consumer goods

(1) In the case of goods of a type ordinarily supplied for private use or consumption, where

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loss or damage—

(a)arises from the goods proving defective while in consumer use; and

(b)results from the negligence of a person concerned in the manufacture or distribution of the goods,

liability for the loss or damage cannot be excluded or restricted by reference to any contract term or notice contained in or operating by reference to a guarantee of the goods.

(2)For these purposes—

(a)goods are to be regarded as ‘in consumer use’ when a person is using them, or has them in his possession for use, otherwise than exclusively for the purposes of a business; and

(b)anything in writing is a guarantee if it contains or purports to contain some promise or assurance (however worded or presented) that defects will be made good by complete or partial replacement, or by repair, monetary compensation or otherwise.

(3)This section does not apply as between the parties to a contract under or in pursuance of which possession or ownership of the goods passed.

6 Sale and hire-purchase

(1)Liability for breach of the obligations arising from—

(a)section 12 of the Sale of Goods Act 1979 (seller’s implied undertakings as to title, etc);

(b)section 8 of the Supply of Goods (Implied Terms) Act 1973 (the corresponding thing in relation to hire-purchase),

cannot be excluded or restricted by reference to any contract term.

(2) As against a person dealing as consumer, liability for breach of the obligations arising from—

(a)section 13, 14 or 15 of the 1979 Act (seller’s implied undertakings as to conformity of goods with description or sample, or as to their quality or fitness for a particular purpose);

(b)section 9, 10 or 11 of the 1973 Act (the corresponding things in relation to hire-purchase),

cannot be excluded or restricted by reference to any contract term.

(3) As against a person dealing otherwise than as consumer, the liability specified in subsection (2) above can be excluded or restricted by reference to a contract term, but only in so far as the term satisfies the requirement of reasonableness.

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(4) The liabilities referred to in this section are not only the business liabilities defined by section 1(3), but include those arising under any contract of sale of goods or hire-purchase agreement.

7 Miscellaneous contracts under which goods pass

(1)Where the possession or ownership of goods passes under or in pursuance of a contract not governed by the law of sale of goods or hire-purchase, subsections

(2)to (4) below apply as regards the effect (if any) to be given to contract terms excluding or restricting liability for breach of obligation arising by implication of law from the nature of the contract.

(2)As against a person dealing as consumer, liability in respect of the goods’ correspondence with description or sample, or their quality or fitness for any particular purpose, cannot be excluded or restricted by reference to any such term.

(3)As against a person dealing otherwise than as consumer, that liability can be excluded or restricted by reference to such a term, but only in so far as the term satisfies the requirement of reasonableness.

(3A) Liability for breach of the obligations arising under section 2 of the Supply of Goods and Services Act 1982 (implied terms about title etc in certain contracts for the transfer of the property in goods) cannot be excluded or restricted by references to any such term.

(4)Liability in respect of—

(a)the right to transfer ownership of the goods, or give possession; or

(b)the assurance of quiet possession to a person taking goods in pursuance of the contract,

cannot (in a case to which subsection (3A) above does not apply) be excluded or restricted by reference to any such term except in so far as the term satisfies the requirement of reasonableness.

(5) This section does not apply in the case of goods passing on a redemption of trading stamps within the Trading Stamps Act 1964 or the Trading Stamps Act (Northern Ireland) 1965.

8 Misrepresentation

(This section substitutes the Misrepresentation Act 1967, s 3 and the Misrepresentation Act (Northern Ireland) 1967, s 3)

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9 Effect of breach

(1)Where for reliance upon it a contract term has to satisfy the requirement of reasonableness, it may be found to do so and be given effect accordingly notwithstanding that the contract has been terminated either by breach or by a party electing to treat it as repudiated.

(2)Where on a breach the contract is nevertheless affirmed by a party entitled to treat it as repudiated, this does not of itself exclude the requirement of reasonableness in relation to any contract term.

10 Evasion by means of secondary contract

A person is not bound by any contract term prejudicing or taking away rights of his which arise under, or in connection with the performance of, another contract, so far as those rights extend to the enforcement of another’s liability which this Part of this Act prevents that other from excluding or restricting.

11 The ‘reasonableness’ test

(1)In relation to a contract term, the requirement of reasonableness for the purposes of this Part of this Act, section 3 of the Misrepresentation Act 1967 and section 3 of the Misrepresentation Act (Northern Ireland) 1967 is that the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.

(2)In determining for the purposes of section 6 or 7 above whether a contract term satisfies the requirement of reasonableness, regard shall be had in particular to the matters specified in Schedule 2 to this Act; but this subsection does not prevent the court or arbitrator from holding, in accordance with any rule of law, that a term which purports to exclude or restrict any relevant liability is not a term of the contract.

(3)In relation to a notice (not being a notice having contractual effect), the requirement of reasonableness under this Act is that it should be fair and reasonable to allow reliance on it, having regard to all the circumstances obtaining when the liability arose or (but for the notice) would have arisen.

(4)Where by reference to a contract term or notice a person seeks to restrict liability to a specified sum of money, and the question arises (under this or any other Act) whether the term or notice satisfies the requirement of reasonableness, regard shall be had in particular (but without prejudice to subsection (2) above in the case of contract terms) to—

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(a)the resources which he could expect to be available to him for the purpose of meeting the liability should it arise; and

(b)how far it was open to him to cover himself by insurance.

(5) It is for those claiming that a contract term or notice satisfies the requirement of reasonableness to show that it does.

12 ‘Dealing as consumer’

(1)A party to a contract ‘deals as consumer’ in relation to another party if—

(a)he neither makes the contract in the course of a business nor holds himself out as doing so; and

(b)the other party does make the contract in the course of a business; and

(c)in the case of a contract governed by the law of sale of goods or hire purchase, or by section 7 of this Act, the goods passing under or in pursuance of the contract are of a type ordinarily supplied for private use or consumption.

(2)But on a sale by auction or by competitive tender the buyer is not in any circumstances to be regarded as dealing as consumer.

(3)Subject to this, it is for those claiming that a party does not deal as consumer to show that he does not.

13 Varieties of exemption clause

(1) To the extent that this Part of this Act prevents the exclusion or restriction of any liability it also prevents—

(a)making the liability or its enforcement subject to restrictive or onerous conditions;

(b)excluding or restricting any right or remedy in respect of the liability, or subjecting a person to any prejudice in consequence of his pursuing any such right or remedy;

(c)excluding or restricting rules of evidence or procedure;

and (to that extent) sections 2 and 5 to 7 also prevent excluding or restricting liability by reference to terms and notices which exclude or restrict the relevant obligation or duty.

(2) But an agreement in writing to submit present or future differences to arbitration is not to be treated under this Part of this Act as excluding or restricting any liability.

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14 Interpretation of Part I

In this Part of this Act—

‘business’ includes a profession and the activities of any government department or local or public authority;

‘goods’ has the same meaning as in the Sale of Goods Act 1979:

‘hire-purchase agreement’ has the same meaning as in the Consumer Credit Act 1974;

‘negligence’ has the meaning given by section 1(1);

‘notice’ includes an announcement, whether or not in writing, and any other communication or pretended communication; and

‘personal injury’ includes any disease and any impairment of physical or mental condition.

PART II

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PART III

PROVISIONS APPLYING TO WHOLE OF UNITED KINGDOM

26 International supply contracts

(1)The limits imposed by this Act on the extent to which a person may exclude or restrict liability by reference to a contract term do not apply to liability arising under such a contract as is described in subsection (3) below.

(2)The terms of such a contract are not subject to any requirement of reasonableness under section 3 or 4: and nothing in Part II of this Act shall require the incorporation of the terms of such a contract to be fair and reasonable for them to have effect.

(3)Subject to subsection (4), that description of contract is one whose characteristics are the following—

(a)either it is a contract of sale of goods or it is one under or in pursuance of which the possession or ownership of goods passes; and

(b)it is made by parties whose places of business (or, if they have none, habitual residences) are in the territories of different States (the Channel Islands and the Isle of Man being treated for this purpose as different States from the United Kingdom).

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(4)A contract falls within subsection (3) above only if either—

(a)the goods in question are, at the time of the conclusion of the contract, in the course of carriage, or will be carried, from the territory of one State to the territory of another; or

(b)the acts constituting the offer and acceptance have been done in the territories of different States; or

(c)the contract provides for the goods to be delivered to the territory of a State other than that within whose territory those acts were done.

27 Choice of law clauses

(1)Where the law applicable to a contract is the law of any part of the United Kingdom only by choice of the parties (and apart from that choice would be the law of some country outside the United Kingdom) sections 2 to 7 and 16 to 21 of this Act do not operate as part of the law applicable to the contract.

(2)This Act has effect notwithstanding any contract term which applies or purports to apply the law of some country outside the United Kingdom, where (either or both)—

(a)the term appears to the court, or arbitrator or arbiter to have been imposed wholly or mainly for the purpose of enabling the party imposing it to evade the operation of this Act; or

(b)in the making of the contract one of the parties dealt as consumer, and he was then habitually resident in the United Kingdom, and the essential steps necessary for the making of the contract were taken there, whether by him or by others on his behalf.

(3)In the application of subsection (2) above to Scotland, for paragraph (b) there shall be substituted—

‘(b) the contract is a consumer contract as defined in Part II of this Act, and the consumer at the date when the contract was made was habitually resident in the United Kingdom, and the essential steps necessary for the making of the contract were taken there, whether by him or by others on

his behalf.’.

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4 Section 2(1) and (2) do not extend to a contract of employment, except in favour of the employee.

5 Section 2(1) does not affect the validity of any discharge and indemnity given by a person, on or in connection with an award to him of compensation for pneumoconiosis attributable to employment in the coal industry, in respect of any further claim arising from his contracting that disease.

SCHEDULE 2

‘GUIDELINES’ FOR APPLICATION OF REASONABLENESS TEST

Sections 11(2), 24(2)

The matters to which regard is to be had in particular for the purposes of sections 6(3), 7(3) and (4), 20 and 21 are any of the following which appear to be relevant—

(a)the strength of the bargaining positions of the parties relative to each other, taking into account (among other things) alternative means by which the customer’s requirements could have been met;

(b)whether the customer received an inducement to agree to the term, or in accepting it had an opportunity of entering into a similar contract with other persons, but without having to accept a similar term;

(c)whether the customer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties);

(d)where the term excludes or restricts any relevant liability if some condition is not complied with, whether it was reasonable at the time of the contract to expect that compliance with that condition would be practicable;

(e)whether the goods were manufactured, processed or adapted to the special order of the customer.

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The Unfair Terms in Consumer Contracts Regulations 1999

(UTCCR)

SI 1999 No 2083

Whereas the Secretary of State is a Minister designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to measures relating to consumer protection:

Now, the Secretary of State, in exercise of the powers conferred upon him by section 2(2) of that Act, hereby makes the following Regulations:—

Citation and commencement

1. These Regulations may be cited as the Unfair Terms in Consumer Contracts Regulations 1999 and shall come into force on 1st October 1999.

Revocation

2. The Unfair Terms in Consumer Contracts Regulations 1994 are hereby revoked.

Interpretation

3.—(1) In these Regulations—

‘the Community’ means the European Community;

‘consumer’ means any natural person who, in contracts covered by these Regulations, is acting for purposes which are outside his trade, business or profession;

‘court’ in relation to England and Wales and Northern Ireland means a county court or the High Court, and in relation to Scotland, the Sheriff or the Court of Session;

‘Director’ means the Director General of Fair Trading;

‘EEA Agreement’ means the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the protocol signed at Brussels on 17th March 1993;

‘Member State’ means a State which is a contracting party to the EEA Agreement; ‘notified’ means notified in writing;

‘qualifying body’ means a person specified in Schedule 1;

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‘seller or supplier’ means any natural or legal person who, in contracts covered by these Regulations, is acting for purposes relating to his trade, business or profession, whether publicly owned or privately owned;

‘unfair terms’ means the contractual terms referred to in regulation 5.

(2) In the application of these Regulations to Scotland for references to an ‘injunction’ or an ‘interim injunction’ there shall be substituted references to an ‘interdict’ or ‘interim interdict’ respectively.

Terms to which these Regulations apply

4.—(1) These Regulations apply in relation to unfair terms in contracts concluded between a seller or a supplier and a consumer.

(2)These Regulations do not apply to contractual terms which reflect—

(a)mandatory statutory or regulatory provisions (including such provisions under the law of any Member State or in Community legislation having effect in the United Kingdom without further enactment);

(b)the provisions or principles of international conventions to which the Member States or the Community are party.

Unfair Terms

5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.

(2)A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

(3)Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

(4)It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.

(5)Schedule 2 to these Regulations contains an indicative and non-exhaustive list of the terms which may be regarded as unfair.

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Assessment of unfair terms

6.—(1) Without prejudice to regulation 12, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.

(2) In so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate—

(a)to the definition of the main subject matter of the contract, or

(b)to the adequacy of the price or remuneration, as against the goods or services supplied in exchange.

Written contracts

7.—(1) A seller or supplier shall ensure that any written term of a contract is expressed in plain, intelligible language.

(2) If there is doubt about the meaning of a written term, the interpretation which is most favourable to the consumer shall prevail but this rule shall not apply in proceedings brought under regulation 12.

Effect of an unfair term

8.—(1) An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.

(2) The contract shall continue to bind the parties if it is capable of continuing in existence without the unfair term.

Choice of law clauses

9. These Regulations shall apply notwithstanding any contract term which applies or purports to apply the law of a non-Member State, if the contract has a close connection with the territory of the Member States.

Complaints—consideration by Director

10.—(1) It shall be the duty of the Director to consider any complaint made to him that any contract term drawn up for general use is unfair, unless—

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(a)the complaint appears to the Director to be frivolous or vexatious; or

(b)a qualifying body has notified the Director that it agrees to consider the complaint.

(2)The Director shall give reasons for his decision to apply or not to apply, as the case may be, for an injunction under regulation 12 in relation to any complaint which these Regulations require him to consider.

(3)In deciding whether or not to apply for an injunction in respect of a term which the Director considers to be unfair, he may, if he considers it appropriate to do so, have regard to any undertakings given to him by or on behalf of any person as to the continued use of such a term in contracts concluded with consumers.

Complaints—consideration by qualifying bodies

11.—(1) If a qualifying body specified in Part One of Schedule 1 notifies the Director that it agrees to consider a complaint that any contract term drawn up for general use is unfair, it shall be under a duty to consider that complaint.

(2) Regulation 10(2) and (3) shall apply to a qualifying body which is under a duty to consider a complaint as they apply to the Director.

Injunctions to prevent continued use of unfair terms

12.—(1) The Director or, subject to paragraph (2), any qualifying body may apply for an injunction (including an interim injunction) against any person appearing to the Director or that body to be using, or recommending use of, an unfair term drawn up for general use in contracts concluded with consumers.

(2)A qualifying body may apply for an injunction only where—

(a)it has notified the Director of its intention to apply at least fourteen days before the date on which the application is made, beginning with the date on which the notification was given; or

(b)the Director consents to the application being made within a shorter period.

(3)The court on an application under this regulation may grant an injunction on such terms as it thinks fit.

(4)An injunction may relate not only to use of a particular contract term drawn up for general use but to any similar term, or a term having like effect, used or recommended for use by any person.

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Powers of the Director and qualifying bodies to obtain documents and information

13.—(1) The Director may exercise the power conferred by this regulation for the purpose of—

(a)facilitating his consideration of a complaint that a contract term drawn up for general use is unfair; or

(b)ascertaining whether a person has complied with an undertaking or court order as to the continued use, or recommendation for use, of a term in contracts concluded with consumers.

(2)A qualifying body specified in Part One of Schedule 1 may exercise the power conferred by this regulation for the purpose of—

(a)facilitating its consideration of a complaint that a contract term drawn up for general use is unfair; or

(b)ascertaining whether a person has complied with—

(i)an undertaking given to it or to the court following an application by that body, or

(ii)a court order made on an application by that body,

as to the continued use, or recommendation for use, of a term in contracts concluded with consumers.

(3)The Director may require any person to supply to him, and a qualifying body specified in Part One of Schedule 1 may require any person to supply to it—

(a)a copy of any document which that person has used or recommended for use, at the time the notice referred to in paragraph (4) below is given, as a pre-formulated standard contract in dealings with consumers;

(b)information about the use, or recommendation for use, by that person of that document or any other such document in dealings with consumers.

(4)The power conferred by this regulation is to be exercised by a notice in writing which may—

(a)specify the way in which and the time within which it is to be complied with; and

(b)be varied or revoked by a subsequent notice.

(5)Nothing in this regulation compels a person to supply any document or information which he would be entitled to refuse to produce or give in civil proceedings before the court.

(6)If a person makes default in complying with a notice under this regulation, the court may, on the application of the Director or of the qualifying body, make such order as the court thinks fit for requiring the default to be made good, and any such order may provide that all the costs or expenses of and incidental to the

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application shall be borne by the person in default or by any officers of a company or other association who are responsible for its default.

Notification of undertakings and orders to Director

14.A qualifying body shall notify the Director—

(a)of any undertaking given to it by or on behalf of any person as to the continued use of a term which that body considers to be unfair in contracts concluded with consumers;

(b)of the outcome of any application made by it under regulation 12, and of the terms of any undertaking given to, or order made by, the court;

(c)of the outcome of any application made by it to enforce a previous order of the court.

Publication, information and advice

15.—(1) The Director shall arrange for the publication in such form and manner as he considers appropriate, of—

(a)details of any undertaking or order notified to him under regulation 14;

(b)details of any undertaking given to him by or on behalf of any person as to the continued use of a term which the Director considers to be unfair in contracts concluded with consumers;

(c)details of any application made by him under regulation 12, and of the terms of any undertaking given to, or order made by, the court;

(d)details of any application made by the Director to enforce a previous order of the court.

(2)The Director shall inform any person on request whether a particular term to which these Regulations apply has been—

(a)the subject of an undertaking given to the Director or notified to him by a qualifying body; or

(b)the subject of an order of the court made upon application by him or notified to him by a qualifying body;

and shall give that person details of the undertaking or a copy of the order, as the case may be, together with a copy of any amendments which the person giving the undertaking has agreed to make to the term in question.

(3) The Director may arrange for the dissemination in such form and manner as he considers appropriate of such information and advice concerning the operation of these Regulations as may appear to him to be expedient to give to the public and to all persons likely to be affected by these Regulations.

Howells

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SCHEDULE 1

QUALIFYING BODIES

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SCHEDULE 2

REGULATION 5(5)

Indicative and non-exhaustive list of terms which may be regarded as unfair

1.Terms which have the object or effect of—

(a)excluding or limiting the legal liability of a seller or supplier in the event of the death of a consumer or personal injury to the latter resulting from an act or omission of that seller or supplier;

(b)inappropriately excluding or limiting the legal rights of the consumer vis- à-vis the seller or supplier or another party in the event of total or partial non-performance or inadequate performance by the seller or supplier of any of the contractual obligations, including the option of offsetting a debt owed to the seller or supplier against any claim which the consumer may have against him;

(c)making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realisation depends on his own will alone;

(d)permitting the seller or supplier to retain sums paid by the consumer where the latter decides not to conclude or perform the contract, without providing for the consumer to receive compensation of an equivalent amount from the seller or supplier where the latter is the party cancelling the contract;

(e)requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;

(f)authorising the seller or supplier to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer, or permitting the seller or supplier to retain the sums paid for services not yet supplied by him where it is the seller or supplier himself who dissolves the contract;

(g)enabling the seller or supplier to terminate a contract of indeterminate duration without reasonable notice except where there are serious grounds for doing so;

(h)automatically extending a contract of fixed duration where the consumer does not indicate otherwise, when the deadline fixed for the consumer to express his desire not to extend the contract is unreasonably early;

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(i)irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

(j)enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

(k)enabling the seller or supplier to alter unilaterally without a valid reason any characteristics of the product or service to be provided;

(l)providing for the price of goods to be determined at the time of delivery or allowing a seller of goods or supplier of services to increase their price without in both cases giving the consumer the corresponding right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded;

(m)giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract;

(n)limiting the seller’s or supplier’s obligation to respect commitments undertaken by his agents or making his commitments subject to compliance with a particular formality;

(o)obliging the consumer to fulfil all his obligations where the seller or supplier does not perform his;

(p)giving the seller or supplier the possibility of transferring his rights and obligations under the contract, where this may serve to reduce the guarantees for the consumer, without the latter’s agreement;

(q)excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.

2.Scope of paragraphs 1(g), (j) and (l)

(a)Paragraph 1(g) is without hindrance to terms by which a supplier of financial services reserves the right to terminate unilaterally a contract of indeterminate duration without notice where there is a valid reason, provided that the supplier is required to inform the other contracting party or parties thereof immediately.

(b)Paragraph 1(j) is without hindrance to terms under which a supplier of financial services reserves the right to alter the rate of interest payable by the consumer or due to the latter, or the amount of other charges for financial services without notice where there is a valid reason, provided that the supplier is required to inform the other contracting party or parties thereof at the earliest opportunity and that the latter are free to dissolve the contract immediately.

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Paragraph 1(j) is also without hindrance to terms under which a seller or supplier reserves the right to alter unilaterally the conditions of a contract of indeterminate duration, provided that he is required to inform the consumer with reasonable notice and that the consumer is free to dissolve the contract.

(c)Paragraphs 1(g), (j) and (l) do not apply to:

—transactions in transferable securities, financial instruments and other products or services where the price is linked to fluctuations in a stock exchange quotation or index or a financial market rate that the seller or supplier does not control;—contracts for the purchase or sale of foreign currency, traveller’s cheques or international money orders denominated in foreign currency;

(d)Paragraph 1(l) is without hindrance to price indexation clauses, where lawful, provided that the method by which prices vary is explicitly described.

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French Consumer Code: Article L 132-1

In contracts concluded between professionnels and non-professionnels or consumers, terms are unfair when their object or effect is to create a significant imbalance between parties’ rights and obligations to the detriment of the consumer.

It is possible to determine, by means of décrets of the Conseil d’Etat, enacted after the opinion of the Commission envisaged by article L 132-2, the types of terms which must be regarded as unfair in accordance with para 1.

An Annex to the present code includes an indicative and non-exhaustive list of terms that may be regarded as unfair if they satisfy the conditions under para 1. This is without prejudice the requirement that, in case of a dispute on a contract containing one of these terms, the claimant must prove the unfair nature of the term.

These provisions are applicable whatever the form and means of support of the contract are. The same applies to order forms, invoices, guarantees, delivery notes, notes or tickets containing terms, whether freely negotiated or not, or references to pre-established standard conditions.

Without prejudice to the rules of interpretation of articles 1156 to 1161, 1163 and 1164 of the civil code, the unfair nature of a term must be appreciated by reference, at the time of conclusion of the contract, to all circumstances attending its conclusion, as well as all to the other terms of the contract. Equally, it must be appreciated with reference to the terms contained in another contract whenever the conclusion or performance of the two contracts legally depend one on the other.

Unfair terms are deemed as not written.

The appreciation of the unfair nature as per para 1 does not concern the definition of the subject matter of the contract or the adequacy of the price or remuneration to the good sold or the service offered as long as the terms are drafted in a plain, intelligible way.

Terms other than the ones declared unfair shall continue to bind the parties if the contract is capable of continuing in existence without the unfair terms.

The provisions of this article are provisions of ordre public.

Annex: terms referred to at para 3 of article L 132-1

1.Terms having as their object or effect:

(a)excluding or limiting the legal liability of the professionnel in the event of the death of a consumer or personal injury to the latter resulting from an act or omission of that professionnel;

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(b)inappropriately excluding or limiting the legal rights of the consumer vis- à-vis the professionnel or another party in the event of total or partial nonperformance or inadequate performance by the professionnel of any of the contractual obligations, including the option of offsetting a debt owed to the professionnel against any claim which the consumer may have against him;

(c)making an agreement binding on the consumer whereas performance by the professionnel is subject to a condition whose realization depends on his own will alone;

(d)permitting the professionnel to retain sums paid by the consumer where the latter decides not to conclude or perform the contract, without providing for the consumer the right to receive compensation of an equivalent amount from the professionnel where the latter is the party cancelling the contract;

(e)requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;

(f)authorizing the professionnel to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer, or permitting the professionnel to retain the sums paid for services not yet supplied by him where it is the professionnel himself who dissolves the contract;

(g)enabling the professionnel to terminate a contract of indeterminate duration without reasonable notice except where there are serious grounds for doing so;

(h)automatically extending a contract of fixed duration where the consumer does not indicate otherwise, when the deadline fixed for the consumer to express his desire not to extend the contract is unreasonably early;

(i)irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

(j)enabling the professionnel to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

(k)enabling the professionnel to alter unilaterally without a valid reason any characteristics of the product or service to be provided;

(l)providing for the price of goods to be determined at the time of delivery or allowing a professionnel to increase their price without in both cases giving the consumer the corresponding right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded;

(m)giving the professionnel the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract;

(n)limiting the professionnel’s obligation to respect commitments undertaken by his agents or making his commitments subject to compliance with a particular formality;

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(o)obliging the consumer to fulfil all his obligations where the professionnel does not perform his;

(p)giving the professionnel the possibility of transferring his rights and obligations under the contract, where this may serve to reduce the guarantees for the consumer, without the latter’s agreement;

(q)excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.

2.Scope of subparagraphs (g), (j) and (l)

(a)Subparagraph (g) is without hindrance to terms by which a supplier of financial services reserves the right to terminate unilaterally a contract of indeterminate duration without notice where there is a valid reason, provided that the supplier is required to inform the other contracting party or parties thereof immediately.

(b)Subparagraph (j) is without hindrance to terms under which a supplier of financial services reserves the right to alter the rate of interest payable by the consumer or due to the latter, or the amount of other charges for financial services without notice where there is a valid reason, provided that the supplier is required to inform the other contracting party or parties thereof at the earliest opportunity and that the latter are free to dissolve the contract immediately.

Subparagraph (j) is also without hindrance to terms under which a professionel reserves the right to alter unilaterally the conditions of a contract of indeterminate duration, provided that he is required to inform the consumer with reasonable notice and that the consumer is free to dissolve the contract.

(c)Subparagraphs (g), (j) and (l) do not apply to:

—transactions in transferable securities, financial instruments and other products or services where the price is linked to fluctuations in a stock exchange quotation or index or a financial market rate that the professionnel does not control;

—contracts for the purchase or sale of foreign currency, traveller’s cheques or international money orders denominated in foreign currency;

(d)Subparagraph (l) is without hindrance to price-indexation clauses, where lawful, provided that the method by which prices vary is explicitly described.

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Bürgerliches Gesetzbuch (BGB)

BOOK 2 LAW OF THE OBLIGATIONS

SECTION 2: FORMATION OF CONTRACTUAL OBLIGATIONS BY MEANS OF

STANDARD BUSINESS TERMS

§ 305 Incorporation of standard business terms into the contract

(1)Standard business terms are all contractual terms pre-established for a multitude of contracts which one party to the contract (the user) presents to the other party upon the conclusion of the contract. It is irrelevant whether the provisions appear as a separate part of a contract or are included in the contractual document itself, how extensive they are, what script is used for them, or what form the contract takes. Contractual terms do not constitute standard business terms where they have been individually negotiated between the parties.

(2)Standard business terms are incorporated into the contract only if, during the conclusion of the contract, the user

1.expressly draws the other party’s attention to them, or if, because of the way in which the contract is concluded, an express reference to them is unreasonably difficult, he draws his attention to them by means of a clearly visible sign at the place where the contract is concluded and

2.gives the other party, in a reasonable manner that also appropriately takes account of any physical handicap of the other party discernible by the user, the possibility of gaining knowledge of their content,

and if the other party agrees that they are to apply.

(3)Subject to observance of the requirements set out in subsection (2) above, the parties may agree in advance that particular standard business terms will apply to a particular type of legal transaction.

§ 305a Incorporation in special cases

Even if the requirements set out in § 305 (2) Nos 1 and 2 are not observed, if the other party agrees to their application:

1. railway tariffs and regulations adopted with the approval of the competent transport authority or on the basis of international conventions and terms of transport, authorised in accordance with the Passenger Transport Act, of trams, trolley buses and motor vehicles in scheduled services are incorporated into the transport contract;

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2. standard business terms published in the official journal of the regulatory authority for Post and Telecommunications and kept available in the user’s business premises are incorporated

(a)into contracts of carriage concluded away from business premises by the posting of items in post boxes,

(b)into contracts for telecommunications, information and other services that are provided directly and in one go by means of remote communication and during the provision of a telecommunications service, if it is unreasonably difficult to make the standard business terms available to the other party before conclusion of the contract.

§ 305b Precedence of individually negotiated terms

Individually negotiated terms take precedence over standard business terms.

§ 305c Surprising and ambiguous clauses

(1)Provisions in standard business terms which in the circumstances, in particular in view of the outward appearance of the contract, are so unusual that the contractual partner of the user could not possibly have expected them, do not form part of the contract.

(2)In case of doubt, standard business terms are interpreted against the user.

§ 306 Legal consequences of non-incorporation and invalidity

(1)If all or some standard business terms have not become part of the contract or are invalid, the remainder of the contract continues to be valid.

(2)Where provisions have not become part of the contract or are invalid, the content of the contract is determined by the statutory rules.

(3)The contract is invalid if one party would suffer unreasonable hardship if he were bound by the contract even after the amendment provided for in subsection

(2)above.

§ 306a No circumvention

The rules in this section apply even if they are circumvented by other arrangements.

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§ 307 Review of subject-matter

(1)Provisions in standard business terms are invalid if, contrary to the requirement of good faith, they place the contractual partner of the user at an unreasonable disadvantage. An unreasonable disadvantage may also result from the fact that the provision is not clear and comprehensible.

(2)In case of doubt, an unreasonable disadvantage is assumed if a provision

1.cannot be reconciled with essential basic principles of the statutory rule from which it deviates, or

2.restricts essential rights or duties resulting from the nature of the contract in such a manner that there is a risk that the purpose of the contract will not be achieved.

(3)Subsections (1) and (2) above, and §§ 308 and 309 apply only to provisions in standard business terms by means of which provisions derogating from legal rules or provisions supplementing those rules are agreed. Other provisions may be invalid under subsection (1), sentence 2, above, in conjunction with subsection (1), sentence 1, above.

§ 308 Clauses whose validity is subject to appraisal

In standard business terms the following terms, in particular, are invalid:

1.(period for acceptance or performance)

a provision by which the user reserves the right to an unreasonably long or inadequately specified period for acceptance or rejection of an offer or for performance; this does not include reservation of the right to perform only after expiry of the period for revocation or return under §§ 355 (1) and (2) and 356;

2.(additional period for performance)

a provision by which the user, in derogation from legislative provisions, reserves the right to an unreasonably long or inadequately specified additional period within which to perform;

3.(right of termination)

the stipulation of a right for the user to free himself, without an objectively justified reason specified in the contract, of his duty to perform; this does not apply to a contract for the performance of a recurring obligation;

4.(right of amendment)

the stipulation of the user’s right to alter or depart from the promised performance, unless, taking into account the user’s interests, the stipulation to alter or depart from performance is reasonable for the other party;

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5.(fictitious declarations)

a provision whereby a declaration of the user’s contractual partner is deemed or not deemed to have been made by him if he does or fails to do a particular act, unless

a)he is allowed a reasonable period within which to make an express declaration and

b)the user undertakes to draw to his attention at the beginning of the period the particular significance of his conduct; this does not apply to contracts in which the whole of Part B of the contracting rules for award of public works contracts is incorporated;

6.(fictional receipt)

a provision which provides that a declaration by the user of particular importance is deemed to have been received by the other party;

7.(winding-up of contracts)

a provision by which, in the event that one of the parties to the contract terminates the contract or gives notice to terminate it, the user can demand

a)unreasonably high remuneration for the utilisation or use of a thing or a right or for performance made, or

b)unreasonably high reimbursement of expenditure;

8. (unavailability of the object of performance)

a stipulation permitted under 3. above of the user’s right to free himself of his obligation to perform the contract if the object of the performance is not available, unless the user agrees

a)to inform the other party immediately of the unavailability, and

b)immediately to refund counter-performance by that party.

§ 309 Clauses whose invalidity is not subject to appraisal

Even where derogation from the statutory provisions is permissible, the following are invalid in standard business terms:

1.(price increases at short notice)

a provision which provides for an increase in the remuneration for goods or services that are to be supplied within four months of the conclusion of the contract; this does not apply to goods or services supplied in the course of a recurring obligation;

2.(right to refuse to perform) a provision by which

a)the right under § 320 of the contractual partner of the user to refuse to perform is excluded or restricted, or

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b)a right of retention of the contractual partner of the user, in so far as it arises from the same contractual relationship, is excluded or restricted, in particular by making it subject to recognition by the user of the existence of defects;

3.(prohibition of set-off)

a provision by which the contractual partner of the user is deprived of the right to set off a claim which is undisputed or has been declared final and absolute;

4.(notice, period for performance)

a provision by which the user is relieved of the statutory requirement to give notice to the other party to perform or to fix a period for performance or supplementary performance by him;

5.(lump-sum claims for damages)

stipulation of a lump-sum claim by the user for damages or for compensation for reduction in value, if

a)the lump sum in the cases in question exceeds the damage expected in the normal course of events or the reduction in value which normally occurs, or

b)the other party is not given the express right to prove that damage or reduction in value has not occurred or is materially lower than the lump sum agreed;

6.(penalty)

a provision by which the user is entitled to receive payment of a penalty in the event of non-acceptance or late acceptance of performance, delay in payment or in the event that the other party withdraws from the contract;

7. (exclusion of liability for death, injury to body and health and for gross fault)

a) (death and injury to body and health)

exclusion or limitation of liability for losses arising out of death, injury to body or health caused by negligent breach of duty by the user or a deliberate or negligent breach of duty by his statutory agent or a person employed by him to perform the contract;

b) (gross fault)

exclusion or limitation of liability for other losses caused by a grossly negligent breach of duty by the user or a deliberate or grossly negligent breach of duty by a statutory agent of the user or by a person employed by him to perform the contract;

a) and b) above do not apply to restrictions of liability in the terms of transport, authorised in accordance with the Passenger Transport Act, of trams, trolley buses and motor vehicles in scheduled services, in so far as they do not derogate, to the detriment of passengers, from the Regulation concerning the terms of transport by tram and trolley bus and by motor vehicles in scheduled services of 27 February 1970; b) above does not apply to restrictions of liability for State-approved lottery or raffle contracts.

214 Appendix II

8. (other exclusions of liability in the event of breach of duty)

a) (exclusion of the right to withdraw from the contract)

a provision which, upon a breach of duty for which the user is responsible and which does not consist in a defect of the thing sold or the work, excludes or restricts the other party’s right to withdraw from the contract; this does not apply to the terms of contract and tariff rules referred to in no. 7 on the conditions set out therein;

b) (defects)

a provision by which, in contracts for the supply of new, manufactured things or of work,

aa) (exclusion and reference of claims to third parties)

claims against the user on account of a defect as a whole or with regard to individual elements of it are excluded entirely, restricted to the assignment of claims against third parties, or which make the pursuit of legal proceedings against third parties a condition precedent;

bb) (restriction to supplementary performance)

claims against the user are restricted, entirely or with regard to individual elements, to a right to supplementary performance, unless the other party is given an express right to claim a price reduction if supplementary performance is unsuccessful or, except where the defects liability is in respect of building work, to choose to terminate the contract ;

cc)(expenditure incurred in the course of supplementary performance) the user’s obligation to bear the expenditure necessary for supplementary performance, in particular the costs of carriage, transport, labour and materials, is excluded or restricted;

dd)(withholding of supplementary performance)

the user makes supplementary performance conditional on the prior payment of the entire price or, having regard to the defect, an unreasonably high proportion thereof;

ee) (time-limit for notice of defects)

the user fixes a period within which the other party must give notice of nonobvious defects which is shorter than the period permitted under ff) below;

ff) (facilitation of limitation)

facilitates the limitation of claims on account of defects in the cases set out in § 438 (1), no. 2 and § 634a (1), no. 2, or, in other cases, results in a limitation period of less than one year from the date on which the statutory period of limitation begins; this does not apply to contracts in which the whole of Part B of the contracting rules for award of public works contracts is incorporated;

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9. (period of recurring obligations)

in a contractual relationship concerning the periodic delivery of goods or the periodic supply of services or work by the user,

a)a contract duration which binds the other party for more than two years,

b)a tacit extension of the contractual relationship which binds the other party for a period of more than one year in each particular case, or

c)to the detriment of the other party, a period of notice to terminate the contract which is more than three months prior to the expiration of the initial or tacitly extended period of the contract;

this does not apply to contracts for the supply of things sold as a unit, to insurance contracts or contracts between the owners of copyrights and of claims and copyright collecting societies within the meaning of the Protection of Copyrights and Related Rights Act;

10.(change of contract partner)

a provision whereby in sales contracts, contracts for the supply of services or contracts for work a third party assumes or may assume the rights and obligations of the user under the contract, unless the provision

a)specifies the third party by name, or

b)gives the other party the right to withdraw from the contract;

11.(liability of an agent on conclusion of the contract)

a provision by which the user imposes on an agent who concludes the contract for the other party,

a)the agent’s own liability or duty to perform the contractual obligation without having made an express and separate declaration in that regard, or

b)where the agent lacks authority, liability which exceeds that under § 179;

12.(burden of proof)

a provision by which the user alters the burden of proof to the detriment of the other party in particular by

a)imposing the burden in respect of circumstances which fall within the scope of the user’s responsibility, or

b)requiring the other party to acknowledge particular facts;

Subsection b) above does not apply to acknowledgments of receipt which are separately signed or bear a separate, qualified electronic signature;

13. (form of notices and declarations)

a provision by which notices or declarations to be given to the user or third parties are subject to a stricter requirement than the need for writing or to special requirements with regard to receipt.

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§ 310 Scope of application

(1)§ 305 (2) and (3) and §§ 308 and 309 do not apply to standard business terms which are proffered to a businessperson, a legal person governed by public law or a special fund governed by public law. In those cases § 307 (1) and (2) nevertheless applies to the extent that this results in the invalidity of the contractual provisions referred to in §§ 308 and 309; due regard must be had to the customs and practices applying in business transactions.

(2)§§ 308 and 309 do not apply to contracts of electricity, gas, district heating or water supply undertakings for the supply to special customers of electricity, gas, district heating or water from the supply grid unless the conditions of supply derogate, to the detriment of the customer, from Regulations on general conditions for the supply of tariff customers with electricity, gas, district heating or water. The first sentence applies mutatis mutandis to contracts for the disposal of sewage.

(3)In the case of contracts between a businessperson and a consumer (consumer contracts) the rules in this section apply subject to the following provisions:

1.Standard business terms are deemed to have been proffered by the businessperson, unless the consumer introduced them into the contract;

2.§§ 305c (2) and §§ 306, 307 to 309 of the present Act and Article 29a of the Introductory Act to the Civil Code apply to pre-established conditions of contract even if they are intended for use only once and in so far as, because they are pre-established, the consumer could not influence their content.

3.When deciding whether there has been unreasonable detriment under § 307 (1) and (2) the circumstances surrounding the conclusion of the contract must also be taken into account.

(4)This section does not apply to contracts in the field of the law of succession, family law and company law or to collective agreements and privateor publicsector works agreements. When it is applied to labour contracts, appropriate regard must be had to the special features of labour law; § 305 (2) and (3) is not to be applied. Collective agreements and public and private sector works agreements are equivalent to legal rules within the meaning of § 307 (3).

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Relevant Provisions of the Italian Civil Code (codice civile)

Article 1229 Exemption clauses

Any agreement that excludes or restricts the liability for cases of fraud or gross negligence is void.

Any agreement exempting or limiting liability in cases where the act of the debtor or his auxiliaries constitutes a breach of duties arising from rules of public order is void.

Article 1341 Standard form contracts

Standard terms of contract prepared by one of the parties are effective as to the other, only if at the time of formation of the contract the latter knew of them, or should have known of them by using ordinary diligence.

In any case, some specific types of clauses are not effective unless specifically approved in writing. Such clauses are those which establish, in favour of him who has prepared them in advance, limitations on liability, the power of withdrawing from the contract or suspending its performance, or which impose time limits involving forfeitures on the other party, limitations on the power to raise defences, restrictions on contractual freedom in relations with third parties, tacit extension or renewal of the contract, arbitration clauses, or derogations from the competence of courts.

Article 1342 Contract made by forms or formularies

In contracts made by subscribing to forms or formularies prepared for the purpose of regulating certain contractual relationships in a uniform manner, terms added to such forms or formularies prevail over the original terms of said forms or formularies when they are incompatible with them, even though the latter have not been struck out.

This does not affect the application of Art 1341(2).

Article 1370 Interpretatio contra proferentem

Terms contained in standard terms contracts (1341) or in forms or formularies (1342) which have been prepared by one of the contracting parties must be interpreted, in case of doubt, in favour of the other party.

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Relevant provisions of the Italian Consumer Code (Codice del consumo)

dlgs 6 settembre 2005, no 206

PART I GENERAL PROVISIONS

TITLE I

General provisions and aims

[omissis]

Art 3

Definitions

1For the purposes of the present Code the following meanings are to be given:

a)consumer or user: the natural person who acts for purposes which are outside the business or professional activity he may carry out;

b)consumers’ or users’ associations: the entities which have as their exclusive statutory aim the protection of the interests and of the rights of consumers or users;

c)professional: the natural or legal person who acts within the framework of his business or professional activity, or his intermediary ;

[omissis]

PART III RELATIONSHIPS WITH THE CONSUMER

TITLE I

Of consumer contracts in general

Art 33

Unfair terms in a contract between a professional and a consumer

1.Terms in a contract between a consumer and a professional are regarded as unfair when, in spite of the good faith, they cause a significant imbalance in the rights and obligation arising out of the contract to the detriment of the consumer.

2.Unless otherwise proven, terms will be presumed to be unfair when their object or effect is to:

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a)Exclude or limit the liability of the professional in the event of death or injury to the consumer resulting from an act or omission of the professional;

b)Exclude or limit the actions or legal rights of the consumer vis-à-vis the professional or another party in the event of total or partial nonperformance or inadequate performance by the professional;

c)Exclude or limit the possibility for the consumer to offset a debt owed to the professional against any credit which the consumer may have against him;

d)Make an agreement binding on the consumer whereas performance by the professional is subject to a condition whose realisation depends on his own will alone;

e)Allow the professional to retain sums paid by the consumer where the latter does not conclude the contract or cancels it, without providing for the consumer to receive compensation of twice that amount from the professional where the latter does not conclude the contract or cancels it;

f)Require any consumer who fails to perform his obligation or does it with delay to pay a disproportionately high sum as agreed damage, penalty or as any other type of compensation;

g)Authorise the professional to cancel the contract where the same facility is not granted to the consumer, or permit the professional to retain, even in part, the sums paid for performance not yet carried out by him where it is the professional himself who dissolves the contract;

h)Enable the professional to terminate a contract of indeterminate duration without reasonable notice except where there are serious grounds for doing so;

i)Impose a deadline on the consumer to express his desire not to extend the contract which is unreasonably early in respect of the expiry of the contract;

l)Bind the consumer to terms with which he had no opportunity of becoming acquainted before the conclusion of the contract;

m)Enable the professional to unilaterally alter the terms of the contract or any characteristics of the product or service to be provided without a valid reason specified in the contract

n)Provide for the price of goods or services to be determined at the time of delivery or supply;

o)Allow the professional to increase the price of the goods or services without giving the consumer the corresponding right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded;

p)Give the professional the right to determine whether the goods or services supplied are in conformity with the contract, or give him the exclusive right to interpret any term of the contract;

q)Limit the professional’s obligation to respect commitments undertaken by his agents or making his commitments subject to compliance with a particular formality;

220Appendix II

r)Limit or exclude the possibility for the consumer to refuse to fulfil all his obligations where the professional does not perform his;

s)Give the professional the possibility of transferring his rights and obligations under the contract, even with the previous consent of the consumer, where this may reduce the guarantees for the consumer;

t)Restrict the consumer’s right to take legal action by imposing time limitations, unconditioned duties to perform, derogation to the competence of courts prescribed by the law, restrictions on the evidence available to him, impositions on him of a burden of proof which, according to the applicable law, should lie with another party to the ontract, or restrictions to his freedom to contract with thirds;

u)Establishing as competent forum a court that sits in a place which is different from the consumer’s place of residence or domicile;

v)Subject the transfer of a right or the acceptance of an obligation to a conditions whose realisation depends on the professional’s own will alone while the consumer is immediately bound, save for the provision of Art 1355C.c.

3.If the contracts concerns the supply of financial services of indeterminate duration, the professional can, without prejudice to nos h) and m) of paragraph 2:

a)terminate unilaterally the contract without notice where there is a valid reason, provided that the supplier is required to inform the consumer immediately;

b)alter the conditions of the contract where there is a valid reason, provided that the supplier is required to inform the consumer with reasonable notice and that the consumer is free to cancel the contract.

4.If the contracts concerns supply of financial services, the professional can alter, without notice, as long as there is a valid reason, in derogation to nos n) and o) the interest rate or any other charge for the supply of the financial service agreed at the moment of conclusion of the contract, provided that the supplier is required to inform the consumer immediately and that the consumer is free to cancel the contract.

5.Nos h), m), n) and o) of paragraph 2 do not apply to contract concerning securities, financial instruments and other products or services where the price is linked to fluctuations in a stock exchange quotation or index or a financial market rate that the seller or supplier does not control and do not apply to contracts for the purchase or sale of foreign currency, traveller’s cheques or international money orders denominated in foreign currency.

6.Nos n) and o) do not apply to price-indexation clauses, where lawful, provided that the method by which prices vary is explicitly described.

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Art 34

Assessment of the unfair nature of terms

1.The unfairness of a term is assessed by taking into account the nature of the goods or services for which the contract was concluded and by referring to the circumstances attending the conclusion of the contract and to the other terms of the contract or of another contract to which it is related or dependent.

2.Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price of the goods or services as long as these elements are identified in plain, intelligible language.

3.Terms which reproduce statutory provisions or provisions which reproduce provisions or implement principles contained in international conventions to which all EU Members States or the EU are part shall not be regarded as unfair.

4.Terms or parts of terms which have been individually negotiated shall not be regarded as unfair.

5.In contracts made by signing forms or contracts drafted in advance to regulate in a uniform way certain contractual relationships, the burden of proving that terms, or parts of terms, even though unilaterally drafted, have been individually negotiated with the consumer, lies on the professional.

Art 35

Form and interpretation

1.In the case of contracts where all or certain terms offered to the consumer are in writing, these terms must always be drafted in plain, intelligible language.

2.Where there is doubt about the meaning of a term, the interpretation most favourable to the consumer shall prevail.

3.The rule of para 2 shall not apply in the cases regulated by article 37.

Art 36

Voidability of unfair terms

1.Terms regarded as unfair under article 33 and 34 shall not be binding but the contract will continue to bind the parties for the rest.

2.Terms which, even though negotiated, have as their object or effect to:

a)Exclude or limit the liability of the professional in the event of the death or personal injury to the consumer resulting from an act or omission of the professional;

222Appendix II

b)Exclude or limit the actions or legal rights of the consumer vis-a -vis the professional or another party in the event of total or partial nonperformance or inadequate performance by the professional;

c)Bind the consumer to terms with which he had no opportunity of becoming acquainted before the conclusion of the contract;

shall be regarded as voidable.

3.Terms will be voidable only to the advantage of the consumer and voidability can be raised by the judge by his own motion.

4.A retailer has the right to claim compensation from the supplier for the damages he may have suffered where terms in the retailer’s contract have been declared unfair.

5.Terms according to which the law of a non-Member country is the law applicable to the contract are avoidable if they have the effect of depriving the consumer of the protection ensured by the present chapter where the contract has a closer connection with the territory of a Member State of the European Union.

Art 37

Preventive actions

1.The associations which are representative of consumers’ interests mentioned by article 137, professional associations, Chambers of Commerce, Industry, Craftsmanship and Agriculture can bring legal actions against professionals or professional’s associations who use or who recommend the use of standard contract terms and can apply to the competent court for interim relief measures in order to prevent them from using terms which have been declared unfair according to this chapter.

2.The interim measure can be awarded, in case of fair and urgent reasons, in accordance with Art 669-bis ff. of the code of civil procedure.

3.The court can order that the decision is published in one or more newspapers, of which at least one must have national circulation.

4.Preventive actions taken by consumers’ associations shall, for whatever is not covered by the present article, be regulated by article 140.

Art 38

Other applicable provisions

1. Contracts between consumer and professionals shall be regulated by the civil code in all respects that are not regulated by the present code.