THE CONSEQUENCES OF UNFAIR TERMS IN CONSUMER CONTRACTS

Milan Hulmák

Abstract


Provided that a term in a consumer contract is unfair within the meaning of Article 3 (1) of Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts we have to decide what consequences it means for the obligation. The directive only requires that such a term cannot have any effect for the consumer. The article tries to ascertain when the unfairness of a term may lead to the nullity of the entire contract. If the entire contract survives without the unfair term, the national law will offer some tools of how to fill in the gap in the contract, for example supplementary provisions, supplementary interpretations, severability clauses. There is an option too, that the gap does not have to be filled at all. It seems that the CJEU adopts a rather restrictive interpretation, and enables the gap to be filled in if it is necessary to save the contract where the nonexistence (invalidity) of the entire contract would expose the consumer to particularly unfavourable consequences. The article shows that such a restrictive approach is not always in place. Courts should have a broader scope of tools how to establish the balance between the parties, even with ex nunc effects.


Keywords


consumer, unfair contract term, gap in contract, supplementary provisions, supplementary interpretation, severability clause

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