Can the most popular prohibited clauses be permitted if they are worded differently?
A couple of conclusions may be drawn from a random survey of the terms and conditions used by online shops, particularly the general terms of sale. First, there are a number of issues that are particularly important to businesses, and thus they include relevant provisions in their terms and conditions. (We discuss in detail below the most burning issues.) Second, it is apparent that provisions with identical or very similar functions, meaning and purpose are worded in many different ways. This raises the question of whether this results from the mere fact that the terms and conditions are drafted by different people, or if businesses are seeking to avoid the use of clauses already held to be abusive while achieving the same result as the prohibited clause.
It should be stressed that the use of such terms and conditions in consumer contracts occurs through acceptance of the terms and conditions by the user of the online shop, which means that the consumer has no opportunity to negotiate them. Thus, as a rule, such provisions will not be regarded as individually agreed with the consumer. If the provisions frame the rights and obligations of the consumer user in a manner contrary to good practice and grossly infringing the interests of the consumer, the seller or online shop will not be in a position to defend its use of such terms by claiming that the terms were individually negotiated with the user and thus are still binding.
Complaints about non-conforming goods
The first group of issues that businesses are eager to regulate in their terms and conditions involves the rules for complaints about goods purchased through the site. Such provisions are often found to be abusive. The objections typically have to do with conditioning the ability for the consumer to exercise his or her rights on fulfilment of unduly burdensome formalities, or shortening the periods for asserting defects in the goods.
For example, the Court of Competition and Consumer Protection in Poland has prohibited the use of the following provisions:
- “If the customer thinks that the product he received does not comply with the order, he has the right to file a complaint. Such right is available for 10 days after receipt of the shipment. Non-compliance must be raised promptly with the shop by telephone or e-mail.” (item 3046 in the Register of Prohibited Clauses)
- “The basis for a complaint is damage confirmed by the persons delivering the shipment and drawing up a protocol of non-compliance.” (item 3032)
Provisions governing the consumer’s rights in the event that the goods are not in conformity with the contract are unilaterally binding. This means that such rights may be governed in accordance with the Civil Code model, or in a manner more beneficial to the consumer than the Civil Code model. But in no event can they be less favourable to the consumer. For example, on the basis of legal regulations the consumer may exercise his or her warranty rights based on non-conformity with the contract if the non-conformity is asserted within two months after it is discovered; this period cannot be shortened, and the effectiveness of the assertion cannot be conditioned on performance of other acts of diligence.
Amendment of terms and conditions
The real record-holders among prohibited clauses are those giving the seller the unilateral right to change the terms and conditions. Nearly a third of all the provisions held to be abusive in the sale of electronics fall into this group. For example:
- “Making purchases in our shop constitutes acceptance of the Terms and Conditions. We reserve the right to amend the Terms and Conditions without notice to the Users.” (item 3042)
- “Any changes shall be effective upon publication in the online shop, and thus the customer is required to check the provisions on an ongoing basis.” (item 2753)
These clauses are impermissible because a seller cannot reserve the right to unilaterally change the terms without some significant reason indicated in the terms. Similarly, provisions stating that changes introduced unilaterally are binding on the consumer as soon as they are placed on the site, without any obligation to notify the consumer, also violate the rights of consumers.
This does not mean that terms and conditions are set in stone and the online seller can never amend them. An appropriate clause should, however, expressly indicate the instances in which modifications are permissible, and also provide for a manner in which the changes will be introduced so that the consumer is informed about the changes, and the form in which the consumer can accept the changes.
A properly worded clause might read as follows: “The shop reserves the right to amend the Terms and Conditions if [the need to introduce the changes arises directly from a change in regulations of law]. Customers will be notified of changes in the Terms and Conditions by placement of a notice of the changes at www.store.pl/terms&conditions/ together with a notation at the end of the Terms and Conditions listing the changes and the date of each specific change. Any changes to the Terms and Conditions shall be effective 1 month after publication in such manner. Orders placed by customers prior to the effective date of changes in the Terms and Conditions will be filled in accordance with the existing wording of the Terms and Conditions.”
Among all prohibited clauses in the sale of electronics, about one in ten concerns dispute resolution. Some of them limit the venue based on the seller’s location (“The court proper for consideration of disputes arising out of the sale agreement is the court proper as to the registered office of the Seller”—item 3084), while others provide for venue based on the location of the seller or the defendant (“The court proper for consideration of disputes arising out of the sale agreement is the court proper as to the registered office of the defendant or the court proper as to the registered office of the Seller”—item 2951).
These clauses are prohibited because the consumer cannot be deprived of the right to pursue his or her claims before the state court with geographical venue in accordance with generally applicable regulations. For this purpose, it is irrelevant whether the jurisdiction of a given court is excluded in favour of another state court in Poland or a foreign court. As a rule, submission of disputes exclusively to an arbitration court or other non-judicial body is also regarded as impermissible.
This does not mean that provisions changing the statutory venue of a court will always be regarded as prohibited. The permissibility of provisions of this type will also depend on whether the specific provision is detrimental to the consumer, e.g. because the court indicated in the contract is far from the consumer’s place of residence.
A different clause, but the same
It is assumed that when the seller is drafting its terms and conditions it will review the terms for compliance with the law, particularly the Civil Code, regulations on sales to consumers, and the Register of Prohibited Clauses.
Sometimes a clause drafted by the seller differs in its literal wording from a clause held to be abusive, but the meaning and purpose of the clause are identical to the prohibited clause, or very similar.
Which criterion should be decisive: the literal wording (identical to a clause entered in the Register of Prohibited Clauses), or the meaning, effect and purpose sought to be achieved by the clause?
According to the Supreme Court of Poland, the review should reflect the circumstances of the specific case. A proposed clause (identical or very similar in meaning and effect to a clause held to be abusive) will be regarded as prohibited only when use of the clause meets all of the conditions set forth in Civil Code Art. 3851, i.e. the clause is not individually negotiated with the consumer, frames the consumer’s rights and obligations in a manner contrary to good practice, and grossly infringes the interests of the consumer (Supreme Court judgment of 11 October 2007, Case No. III SK 19/07).
Sylwia Paszek, Ludwina Klein, Wardyński & Partners