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Updated 09/2015

Updated 09/2015

Unfair contract terms

Unfair terms in sales contracts are invalid even if the customer signs the contract. Terms and conditions not individually negotiated might be considered unfair if they are disproportionately favourable - in terms of rights and obligations - to the seller.

Any terms drafted in advance - a common practice in standard contracts - are considered as not individually negotiated.

Contracts must be written in plain language. Where the meaning of a term is in doubt, the interpretation most favourable to the customer will be upheld.

In the event of a disagreement between you and your customer as to whether a term is unfair or not, the following factors will be taken into account:

  • the nature of the product or service
  • the circumstances under which the contract was signed.

The price will not be challenged, provided it was stated in plain language in the contract.

In the event of a disagreement between you and your customer as to whether a standard term has been individually negotiated, the burden of proof falls on you.

Examples of unfair terms

Any terms that authorise you to:

  • retain sums already paid if your customer decides not to conclude or perform the contract (unless the customer has a corresponding right to compensation if you decide to cancel the contract)
  • dissolve the contract without reason (unless your customer enjoys the same right)
  • fix the final price of your product upon delivery, without allowing your client to cancel if they consider the final price too high
  • transfer your rights and obligations to another party if this may reduce the guarantees to the customer without their agreement.

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