What are prohibited clauses and how to protect against them?
When concluding a contract, we often have no influence on its terms. Negotiating a contract with banks or other financial institutions only gives the consumer the right to sign or reject it. It is not uncommon for these institutions to impose clauses unfavorable to the consumer. Appropriate knowledge about the consequences of finding a given provision illegal will allow you to effectively avoid them or effectively assert your rights in the future. How does it work in practice? We explain below.
Illegal clauses - what are they?
Pursuant to the provisions of the Civil Code, clauses that have not been agreed individually (abusive clauses - prohibited) do not have legal effects in the sphere of consumer's rights and obligations. This applies to situations when they have been regulated in a manner that is inconsistent with morality and grossly violates the interests of the individual.
An example of such a clause is a condition excluding the entrepreneur's liability for non-performance or improper performance of an obligation.
Art. 3851 of the Civil Code: Illegal contractual provisions - abusive clauses:
“§ 1. Provisions of a contract concluded with a consumer not individually agreed shall not be binding on him, if they shape his rights and obligations in a manner contrary to morality, grossly violating his interests (prohibited contractual provisions). This does not apply to provisions specifying the main services of the parties, including the price or remuneration, if they have been formulated in an unambiguous manner.
§ 2. If the provision of the contract in accordance with § 1 does not bind the consumer, the parties are bound by the contract in the remaining scope.
§ 3. Not individually agreed are the provisions of the contract, the content of which the consumer had no real influence. In particular, this applies to the provisions of the contract adopted from the standard contract proposed to the consumer by the contractor.
§ 4. The burden of proof that an order has been agreed individually shall rest with the party invoking it. "
Illegal clauses - what are their effects and how to fight them?
The Office of Competition and Consumer Protection, in the form of a recommendation, pointed out that if the consumer suspects that the contract offered by the entrepreneur contains prohibited clauses, he should inform him of this. In the event of disagreement with changing the terms of the contract, the best solution will be to change the contractor.
If the contract contains prohibited provisions, then, in accordance with the regulations contained in the Civil Code, such clauses do not bind the consumer by operation of law.
If the entrepreneur does not adequately respond to the position, he should apply to the court to declare the given provision non-binding. However, in the case of a positive ruling on the recognition of a given provision as illegal in the remaining scope, the contract remains valid. In this situation, the court decision is binding only in relation to the parties to the contract.
An additional security measure of a general nature is the so-called abstract pattern control carried out by the Court of Competition and Consumer Protection (SOKiK). The procedure may result in entering a given decision on a special list of prohibited clauses kept by the Office of Competition and Consumer Protection. These provisions may not be used later by entrepreneurs in the course of business. Consumers and non-governmental organizations also have the right to file claims with SOKiK.
Another institution to which comments can be submitted is the municipal or poviat consumer ombudsman or institutions financed from the state budget (eg the Consumer Federation or the Association of Polish Consumers).