We have all had to take out a service, buy a product or apply for some kind of bank loan and face a document with numerous clauses which, without reading, we go ahead and sign. In this way, we accept the conditions and assume they will not have any major consequences.
That does not pose much of a problem, until events do not go according to plan. It is then that, with the document in hand, the other party demands disproportionate obligations of us or fails to comply.
For all of the above, you should always read the small print before signing, since we may come across some unfair terms. In any case, at BBMabogados we have the best professional team to advise you, so please do not hesitate to consult us. If you have a revolving credit card with abusive interest, we can bring a claim to recover your money.
What is an unfair term?
The definition is given by the General Act for the Protection of Consumers and Users and other supplementary rules. According to it, unfair terms are those not individually negotiated, as well as practices not expressly consented to. They cause a significant imbalance in the rights and obligations of the parties, to the detriment of the consumer and user. All of this in breach of the principle of good faith that must govern contracts.
Given the harmful consequences for one of the parties, the law regards them as null and void as a matter of law, without this entailing the nullity of the rest of the contract.
It is important to note that these provisions may be found in all kinds of contracts. However, they are much more common in contracts for the provision of services, the purchase of goods or bank loans.
Types of unfair terms
First of all, it should be noted that unfair terms can take the most varied forms; nevertheless, we will refer to the most common examples. The above-mentioned consumer and user protection law sets out the different types of unfair terms that may arise, namely:
TERMS THAT MAKE THE CONTRACT SUBJECT TO THE BUSINESS’S WILL
Under this heading we find those conditions that can grant the business (understood as the stronger party to the contractual relationship) very long or indeterminate periods to accept or reject a contractual offer or to fulfil an obligation.
Likewise, for fixed-term contracts it will be unfair to provide for provisions that renew them automatically, setting unrealistic timeframes for the user to object. The same classification applies to those that reserve the unilateral interpretation or amendment of the contract to the business without valid reasons duly specified in the contract.
TERMS THAT LIMIT THE BASIC RIGHTS OF THE CONSUMER AND USER
These arise when the legally recognised rights of the consumer and user are improperly excluded or limited. Specifically, through the business’s breach or defective performance and the failure to recognise compensation for the harm caused to the user by its conduct.
TERMS THAT SHOW A LACK OF RECIPROCITY IN THE CONTRACT
These take shape in stipulations where obligations are imposed on the consumer or user even though the other party has not fulfilled its own.
In the same vein are those that provide for the withholding of amounts paid by the consumer or user in the event of withdrawal from the contract, without providing for equal compensation if it is the business that withdraws. Also where the business is allowed to terminate the contract at its discretion, while the consumer or user is not granted the same right.
TERMS THAT IMPOSE DISPROPORTIONATE GUARANTEES OR THE BURDEN OF PROOF IMPROPERLY
There may be terms requiring the user to provide guarantees that are disproportionate to the risk assumed. Likewise, those that place on one party the burden of proof, when it should fall on the other contracting party.
Ways of controlling unfair terms in Santander
In order to limit the use of these terms in the standard contracts commonly used by service providers, sellers or the banking sector, the legislator has established certain essential minimum principles, relating to the way clauses are drafted and interpreted.
This is what is known as forms of control; let us look at the different types:
CONTROL OF INCORPORATION OR INCLUSION
This concerns a formal requirement, such as providing information to the consumer and a specific, clear and simple wording that allows the terms to be understood.
In the same vein, the entire contract must be legible; that is, the font size may not be smaller than one and a half millimetres, nor may contrasts that hinder reading be used.
CONTROL OF CONTENT
This control is directed at the substance of the contract, whose provisions must respect the balance between the rights and obligations of the parties.
How to act when faced with an unfair term in Santander?
Where a contract containing any of these terms has been signed, the first thing to bear in mind is that the law provides that they are null and void as a matter of law and will be treated as not having been included. That being so, the court route is available to report these matters.
If the nullity of the clause is declared by a judge, the rest of the contract will continue to have its effects to the extent that the removed clause allows. To reach this point, the ideal is to have the support and advice of expert lawyers, who always recommend reviewing the contractual documents in detail before signing them.
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