Why is concluding a contract important for the consumer?
The importance of concluding a contract for the consumer, understood as a natural person (or a group of natural persons organized in associations) acting for purposes outside their professional activity, lies in obtaining the provision of a service, the execution of work, or, as applicable, the acquisition of a right over a good in exchange for a price.
In simpler terms, consumers are generally more concerned with the execution phase of a contract by a professional and pay less attention to the prior stages, such as negotiations and contract conclusion. They often rely on and leave it to the professional counterpart, whom they consider more knowledgeable, to determine the price, rights and obligations of the parties, and other contractual clauses.
Why are pre-contractual stages often neglected?
Signing a contract drafted and presented exclusively by the professional often proves harmful to the consumer and their rights. This is because the lack of diligence by one of the contracting parties allows the other party to exploit this imbalance for personal gain, introducing clauses that disrupt contractual fairness or omitting unfavorable details that the consumer, unaware of the need to request specific information, fails to address.
Such practices by the professional are deemed unfair under the law and, in some cases, manifest in the inclusion of abusive clauses that are strongly detrimental to the consumer and may even cause harm.
How are unfair practices regulated under Directive 2005/29/EC?
The interest in prohibiting unfair practices in consumer law stems from the informational and financial imbalance between professionals, considered experts in their fields, and consumers, who contract outside their professional domain and therefore lack the same level of knowledge and expertise. This disparity prevents consumers from always making informed legal decisions.
Both parties to a consumer contract have a duty of good faith. For professionals, this means making the legal act, its clauses, and implications comprehensible to the consumer. Conversely, the consumer is expected to act with the diligence typical of someone entering a legal relationship of interest.
What do misleading unfair practices mean?
In a broad sense, unfair commercial practices, regulated at the Union level through Directive 2005/29/EC, represent any actions, omissions, behaviors, including those related to advertising means, which, according to Article 5 of the Directive, are contrary to the requirements of professional diligence and can influence the consumer, especially when they are misleading or aggressive. Therefore, unfair, and consequently prohibited, will be those actions of the professional that have the ability to substantially distort the consumer’s behavior, directly affecting their capacity to make an informed and untainted decision2.
Special importance must be given to the incidence of unfair practices qualified as misleading, which, according to Article 6 of the Directive, appear in the form of false information or, in fact, correct information but which can mislead the average consumer. In this context, consumer law establishes a general obligation to inform professionals so that, before concluding the contract, the consumer is able to know all the essential characteristics of the services offered3, this being because the misleading nature lies in the fact that this information, if it does not reflect the legal reality, may lead to a decision that the consumer would not have made if they had correctly known the circumstances.
What are abusive clauses?
Regarding clauses that can be qualified as abusive and, consequently, are prohibited, they can be identified through the cumulative incidence of three conditions: the clause was not directly negotiated by the parties, it was included in the contract without adhering to the principle of good faith, and it creates a significant imbalance between the rights and obligations of the parties to the detriment of the consumer. The first of these conditions, the lack of direct negotiation between the parties concerning the contractual clause, refers to situations where the professional takes advantage of their advantageous position over the consumer and unilaterally and preemptively includes unfavorable clauses for their contractual counterpart. According to article 80 of the Consumer Code, a clause that was not directly negotiated means a clause established without the consumer’s involvement, without offering them the opportunity to influence its nature and content. The existence of this legal provision is not a sufficiently strong guarantee for the protection of the consumer’s interests.
Why is legal advice important for consumers?
As long as the person acting outside their professional field is not sufficiently informed, does not know their rights or the guarantees to which they are entitled, their participation in determining the content of contractual clauses is, in reality, only formal. Such a situation goes beyond the protection granted by consumer legislation since every person is expected to know the law, and the fact that a consumer was unaware of the possibilities recognized by the legislator does not negate the existence of negotiations or that the consumer was given the opportunity to defend their interests.
How can consumers prevent harm?
Regarding all these aspects, it must be emphasized that, in reality, the only way a person can prevent and avoid harm caused by entering into contractual relations with a professional who abuses their superior position is to act diligently. This diligence is primarily manifested through seeking and obtaining adequate information about the type of contract they intend to conclude, with the most effective method being requesting legal advice from a lawyer.
Why is legal advice necessary?
Although knowing the law is an obligation for every person, it is unrealistic to expect someone acting outside their professional field to possess the necessary legal knowledge to identify contractual clauses that might harm them or to draft clauses that protect their rights and interests. Such tasks fall within the scope of a lawyer’s activities and materialize through the legal advice provided and the drafting of contracts.
In conclusion, we consider it particularly important for individuals intending to enter legal relationships with professionals to place great emphasis on protecting their own rights and interests, obtaining precise and relevant information, and exercising all due diligence to prevent and avoid tilting the balance of power in favor of the professional. All these goals can be easily achieved by seeking legal advice services provided by legal professionals.
1 See Juanita Goicovici, Constitutive Elements of Unfair Commercial Practices in Consumer Relations, in Studia Universitatis Babeș-Bolyai. Iurisprudentia, no. 3/2016, p. 90.
2Ibidem.
3 See Vasile Pătulea, The Correlation Between Competition Regulation and Consumer Protection Regulation, in Dreptul, no. 8/2016, p. 105.
