Abusive clauses can affect different aspects of a contract, from limiting consumer rights to lack of reciprocity and imposing disproportionate guarantees. Here is an explanation of each category:
Abusive clauses for limiting rights
Article 86 of the Spanish Consumer Law (TRLGDCU) establishes that clauses that deprive the consumer of rights recognized by law are abusive, especially when:
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The business’s liability for breaches or defects in the service is excluded or limited.
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The consumer is prevented from claiming compensation for damages arising from non-conformity.
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The business is exempted from liability when assigning the contract without the consumer’s consent.
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The consumer’s right to terminate the contract due to the business’s breach is restricted.
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The consumer is required to waive receiving a document that proves the transaction.
Abusive clauses for lack of reciprocity
According to Article 87 TRLGDCU, clauses that create contractual imbalance are abusive, such as:
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Requiring the consumer to fulfill all obligations without imposing the same on the business.
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Retaining payments made by the consumer without right to compensation if the business terminates the contract.
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Allowing the business to terminate the contract at its discretion without giving the consumer the same right.
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Rounding up prices or service times without objective justification.
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Imposing excessive difficulties to terminate ongoing service contracts.
Abusive clauses regarding guarantees and enforcement
Articles 88 and 89 TRLGDCU consider abusive those clauses that:
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Require disproportionate guarantees in relation to the risk assumed.
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Shift the burden of proof to the consumer when it should fall on the business.
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Oblige the consumer to bear documentation costs that correspond to the business.
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Impose additional costs not clearly stated in the contract.
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Set penalties or indemnities unrelated to the damages caused.
Abusive clauses regarding jurisdiction and applicable law
Article 90 TRLGDCU deems clauses abusive if they:
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Require the consumer to submit to arbitration other than consumer arbitration.
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Impose submission to a court different from the consumer’s residence or the place of contract performance.
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Link the contract to foreign law unrelated to the place where the transaction takes place.
These clauses can be challenged in court, and if declared abusive, they are considered null and void, without affecting the validity of the rest of the contract.
