UNFAIR CONDITIONS OF THE AGREEMENT.
Consumer protection lawyer
When buying a regular product in a store or receiving services in various fields, the consumer usually does not even think about what contract he enters into and does not deduct under what conditions.
This is often used by unscrupulous entrepreneurs, setting " unfair terms" of the contract with the consumer.
Law of Ukraine "On Consumer Protection" in Art. 18 establishes guarantees of consumer protection in such cases.
A contract, the terms of which result in a significant imbalance of contractual rights and obligations to the detriment of the consumer, may be declared invalid in court.
By a decision of 08.06.2016 in the case №66-330tss1, the Supreme Court confirmed the importance of all three conditions for declaring the contract invalid, namely:
- the conditions violate the principle of good faith
- the conditions cause a significant imbalance of rights and obligations of the parties
- conditions harm the consumer.
What terms of the contract can be considered "unfair"?
The Law "On Consumer Protection" contains, though not complete and exhaustive, but an indicative list of the following conditions:
conditions on release or limitation of legal liability of the seller (performer, manufacturer) in case of death or damage to the health of the consumer caused by actions or inaction of the seller (performer, manufacturer);
on exclusion or restriction of consumer rights in relation to the seller (manufacturer's manufacturer) or a third party in case of full or partial non-performance or improper performance by the seller (performer, manufacturer) of contractual obligations, including terms of set-off, consumer obligations and its requirements in case of breach of contract by the seller (performer, manufacturer);
on the establishment of strict obligations of the consumer, while the provision of services is due only to the discretion of the executor;
on enabling the seller (performer, manufacturer) not to return funds for payment made by the consumer, in case of refusal of the consumer to enter into or perform the contract, without establishing the consumer's right to receive appropriate compensation from the seller (performer, manufacturer) in connection with termination or non-performance the contract;
on the establishment of a requirement for payment by the consumer of a disproportionately large amount of compensation (more than fifty percent of the cost of production) in case of non-fulfillment of obligations under the contract;
on granting the seller (performer, manufacturer) the right to terminate the contract with the consumer at its own discretion, if the consumer is not granted such a right;
on granting the seller (performer, manufacturer) the right not to return funds for payment of non-provided products in case of termination of the contract on the initiative of the seller (performer, manufacturer);
on granting the seller (performer, manufacturer) the right to terminate the contract concluded for an indefinite period with the consumer without notifying him thereof, except as provided by law;
on the establishment of an unreasonably short period for the consumer to consent to the extension of the contract concluded for a specified period, with the automatic extension of such an agreement, if the consumer does not express the appropriate intention.
Importantly! Vague or ambiguous provisions of contracts with consumers are interpreted in favor of the consumer!
What are the consequences of establishing unfair terms of the contract?
In general, for such cases there are two options:
Changing the unfair provisions of the contract
Invalidation of the contract or its unfair part.
At the request of the consumer, those provisions are also subject to elimination, the change of which is due to the change or recognition of the invalidity of another provision of the contract.
An invalid contract will be considered as such from the moment of conclusion, and not from the moment of its recognition as such in court. Instead, changes to the contract will be considered valid from the moment of their introduction.
By law there is also an opportunity to compensate for damages caused to the consumer in the event of unfair terms of the contract.
Part 9 of Article 18 of the Law "On Consumer Protection" provides that the consumer has the right to compensation for damages caused to him by the manufacturer (performer, seller), in connection with the use of the latter advantages of its position in production or trade.
Tips for the consumer
First of all, each consumer should read the terms of the contracts he concludes. Preventing your rights from being violated is always the best way to protect yourself.
If you have already encountered a violation of consumer rights after the conclusion, you should first try to settle by negotiating with the seller or manufacturer. Quite often this approach works most effectively.
In the end, in any case, you can go to court with a statement of claim for violation of their consumer rights.
Whatever method you choose, our lawyers are ready to help you by providing legal advice or accompanying your case in court.
Contact our lawyers in a way convenient for you:
1. Write your question in the CHAT (at the bottom of the page)
2. Call us contact number +380677752277
3. Come to our office (by appointment) at the address: Kyiv, Sq. Solomianska, 2, office 801.