The notion of unfair terms

The legislation on unfair terms set out by Article L. 132-1 of the French Consumer Code is applied on a daily basis.  The notion of unfair terms nevertheless remains unclear. Thirty-five years of inconsistent and erratic application have indeed contributed to making this legislation inaccessible and difficult to predict, thereby damaging legal security.

The reinforcement of this notion necessitates a two-pronged approach. First of all, the concept must be delimited in order to restrict application solely to those individuals requiring protection against unfair terms and only to those terms that genuinely do generate a material imbalance between the rights and obligations of the parties to the contract. The notion of unfair terms then becomes a mechanism aimed at sanctioning abuses of contractual freedom in consumer agreements. The concept must then be identified, by seeking to define and characterize the standard of material imbalance, in particular against the yardstick of criteria generated by practical application.

In doing so, the notion of unfair terms becomes a central notion of consumer law and, more widely, of contract law, in particular with regard to its participation in the renewal of general contract theory.