Negotiated and non-negotiated clauses in consumer law
Are unfair terms non-negotiated terms?
According to Article 87.6 of the Revised Text of the General Law for the Defence of Consumers and Users, non-negotiated terms are considered abusive when they contain "the imposition of terms of excessive duration". Thus, if the stipulations were negotiated, periods of excessive duration could be interposed. However, Article 62.3 TRLGDCU establishes: "In contracts for the provision of services or supply of products of a successive or continuous nature, clauses establishing periods of excessive duration are prohibited".
What criteria does the Supreme Court use to assess the negotiation of clauses?
The Supreme Court uses specific criteria to control the unfairness of the terms, depending on whether they were negotiated or not. As our lawyers who specialise in unfair terms point out, the importance of differentiating whether or not a term has been negotiated lies in the case law of the TJEU, which establishes that the consumer is in a situation of inferiority with respect to the professional, without normally being able to influence the content of the terms.
It is thus established that a clause containing general conditions is not subject to control of content in the case of a negotiated clause. However, according to Article 82.2 TRLGDCU, the fact that a term has been negotiated does not exclude the application of the control of unfairness to the rest of the contract.
Thus, the Supreme Court establishes that, if there is negotiation, such clauses will not be subject to the control of unfairness.
What is meant by negotiation?
In STS 2207/2015, of 29 April, it was established that for a clause to be considered negotiated, it is not sufficient to include in the predisposed contract a heading of "particular conditions" or predisposed mentions that affirm its negotiated nature, nor to state that the clause was negotiated individually.
For the term to be considered as negotiated it is required that the professional or entrepreneur justifies the exceptional reasons that led to the term being individually negotiated with https://www.forcamabogados.com/dret-mercantil-s-8-caese particular consumer.
However, as we have seen, the Supreme Court has not established a series of clear and determining criteria to identify the negotiated nature of a clause.
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