In general terms, and to paraphrase the Supreme Court of Justice, General Contractual Clauses consist of "[a] set of pre-prepared propositions which undetermined proposers or recipients merely propose or accept".
Now, due to their proliferation in society - we venture to say that any adult, throughout their life, will sign several contracts containing these clauses - whether it's telecommunications, opening a bank account; in person, at a distance; in physical or electronic format - these clauses are subject to their own regime, enshrined in various laws, among which Decree-Law no. 446/85, of October 25, stands out.
Their application is of the most varied and imaginable nature, thus essentially dealing with clauses drawn up "without prior individual negotiation, which bidders or undetermined recipients are limited, respectively, to subscribing to or accepting" or clauses "inserted in individualized contracts, but whose previously drawn up content the recipient cannot influence." (see paragraphs 1 and 2 of article 1 of Decree-Law 446/85 of October 25). Exceptions to this rule are the contracts provided for in Article 3 of the aforementioned Decree-Law (i.e. typical clauses approved by the legislator; clauses resulting from international treaties or conventions in force in Portugal; contracts subject to public law rules; acts of family law or inheritance law; and collective labor regulation instruments).
Inherent in these clauses are various duties, including the duty of communication and information, expressly provided for in arts. 5 and 6 of Decree-Law no. 446/85, of October 25, the violation of which abstractly determines exclusion from the contract, under the terms of arts. 8(a) and (b), with the resulting legal effects, generally with a view to protecting the "weaker/vulnerable" party/contractor.
*
With regard to consumer rights per se, in line with the provisions of Article 60(1) of the Constitution of the Portuguese Republic (which states that "Consumers have the right to the quality of goods and services consumed, to training and information (...)"), Article 8(1) of the Constitution of the Portuguese Republic states that "Consumers have the right to the quality of goods and services consumed, to training and information (...)". Article 8(1) of Law no. 24/96, of July 31 (the Consumer Protection Law) states that "The supplier of goods or services must, both during the negotiation phase and when concluding a contract, inform the consumer in a clear, objective and appropriate manner", and Article 8(1), (2) and (3) of Law no. 24/96, of July 31 (the Consumer Protection Law) states that "The supplier of goods or services must, both during the negotiation phase and when concluding a contract, inform the consumer in a clear, objective and appropriate manner". Article 9(1), (2) and (3) of the same law states, in the context of the right to protection of economic interests and the principles of good faith and loyalty, that "With a view to preventing abuses resulting from pre-drafted contracts, the supplier of goods and the provider of services shall be obliged (...) to draft general contractual clauses clearly and precisely, in easily legible characters, including those included in individual contracts (...)", making their regime subject to the general regime for general contractual clauses.
*
Over time, the Courts have been called upon to rule on various clauses, classifying them as prohibited, both in absolute and relative terms, and these can be consulted, among others, via the link http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=837&tabela=leis&so_miolo , in a demonstrative annotation to articles 12, 15, 16, 18, 21 and 22.
*
More recently, Law no. 32/2021, of May 27, made an extremely important change to the aforementioned Decree-Law, whereby the legislator decided that it is absolutely forbidden to provide for any clause that is written in a font size of less than 11 or 2.5 millimeters, and with a line spacing of less than 1.15.
As a mere demonstration, we are going to show you this paragraph in 11-point font and 8-point font (we know of countless contracts that have been drafted with smaller font), both with 1.15 spacing, showing that, in physical contracts, practically all contracts and their clauses are drafted in violation of the new legal precept.
*
Now, without prejudice to the fact that the amendment came into force on August 26, 2021, and that the legislator has determined that such clauses are absolutely prohibited, and this with reference solely and exclusively to the size with which they are presented, we will then understand in the time to come how, in the light of the aforementioned regulations, namely the legislative amendment that has taken place and the provisions of the consumer protection law (a consumer being "anyone to whom goods are supplied, services are provided or any rights are transferred, intended for non-professional use, by a person who carries out an economic activity aimed at obtaining benefits." (The courts will determine the practical application of this prohibition to existing contracts, derogating (or not) from the position adopted by the legislator, and may give rise to the exclusion of numerous contractual clauses contained in contracts that have been concluded and are still in force, without prejudice to, among other things, the limits of good faith, the fulfillment of other obligations and the respective burden of proof inherent in General Contractual Clauses and the fulfillment of obligations, as well as the institute of abuse of law.
On the other hand, we will see that contracts with dozens of pages that "prevented" the average citizen from reading them will easily become contracts with hundreds of pages, so only the future will tell the practical consequences and possible benefits of this legislative change.
Comentarios