16. Lesson 16
Thursday, 24 February 2022 15:53
…Unfair terms in consumer contracts
Some clauses are considered always unfair, independently from any circumstances—>
36)
—> there is no chance for the professional to prove otherwise
[In the “grey list” (art. 33) the professional has the opportunity to “prove otherwise” -
are not unfair]
If some clauses are considered unfair they are void and ineffective, but it goes only for
clauses, not for the rest of the contract —> the consumer is protected by the definition
itself
[partial invalidity and nullity of the contract]
An injunction has the aim to protect from a possible future damage.
When the damage actually happens the only protection for the consumer is the damag
How can consumers enforce their rights:
• Claim to the competition and market authority (or other authorities)
• Sue the court
INVALIDITY OF CONTRACTS
= when the whole contract is considered invalid or null
• Invalidity/null: If a contract is conflicting with the law —> evaluation between the cont
system
• Ineffectiveness: it’s about the contract’s effect —> it just doesn’t produce any —> eval
effects (obviously linked with invalidity)
Valid contract = complying with the law prescriptions
Operating contract = liable to produce effects
Generally an invalid contract doesn’t produce legal effects (it’s ineffective). But it’s not
Invalid contracts:
○ Invalid and ineffective : void
§ when it’s contrary to mandatory rules (illegality, unfairness)
§ lacking of cardinal requirements
—> serious elements against the legal system, the consequences are very strict:
§ Violation of a general interest (> private interest)
§ Nullity can be contested by everyone who has an interest
§ Legal claim for nullity of the contract never lapses (no deadlines)
Thursday, 24 February 2022 15:53
…Unfair terms in consumer contracts
Some clauses are considered always unfair, independently from any circumstances—>
36)
—> there is no chance for the professional to prove otherwise
[In the “grey list” (art. 33) the professional has the opportunity to “prove otherwise” -
are not unfair]
If some clauses are considered unfair they are void and ineffective, but it goes only for
clauses, not for the rest of the contract —> the consumer is protected by the definition
itself
[partial invalidity and nullity of the contract]
An injunction has the aim to protect from a possible future damage.
When the damage actually happens the only protection for the consumer is the damag
How can consumers enforce their rights:
• Claim to the competition and market authority (or other authorities)
• Sue the court
INVALIDITY OF CONTRACTS
= when the whole contract is considered invalid or null
• Invalidity/null: If a contract is conflicting with the law —> evaluation between the cont
system
• Ineffectiveness: it’s about the contract’s effect —> it just doesn’t produce any —> eval
effects (obviously linked with invalidity)
Valid contract = complying with the law prescriptions
Operating contract = liable to produce effects
Generally an invalid contract doesn’t produce legal effects (it’s ineffective). But it’s not
Invalid contracts:
○ Invalid and ineffective : void
§ when it’s contrary to mandatory rules (illegality, unfairness)
§ lacking of cardinal requirements
—> serious elements against the legal system, the consequences are very strict:
§ Violation of a general interest (> private interest)
§ Nullity can be contested by everyone who has an interest
§ Legal claim for nullity of the contract never lapses (no deadlines)
