Abusive clause: Nullity by imbalance

The existence of a  imbalance that hurts the consumers is the key to the abusive condition of the non negotiated terms included in the general conditions of the contracts.

The abusive general condition of a contracts is null where the contract is concluded with a consumer.

The requirements to consider abusive the general condition are:

a) That it is a pre established general condition and it is intended to be imposed in several contracts without being negotiated individually.

b) That it causes a significant imbalance in the rights and obligations in breach of the good faith.

c ) That the imbalance harms the consumer .

The circumstances to consider are those of the date on which the contract was signed , including the expected development of the circumstances whether these were taken into account or should have been taken into account. It is to be considered the information available to a diligent businessman, at least in the short medium term.

The analysis must consider the remaining provisions thereof.

The fact that a clause is clear and understandable does not mean that it is balanced or that it benefits the consumer .

The lack of transparency does not necessarily mean that the clause is unbalanced and that the imbalance is a significant prejudice to the consumer.

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