The List of Abusive Clauses in Consumer Contracts is Expanded

New Resolution No. 994/21 issued by the Secretariat of Domestic Trade has added fifteen new consumer contract clauses that will be considered abusive to the existing regime. Therefore, suppliers using these contracts will need to adjust their terms and conditions starting October 4, 2021.

The abusive clauses general regime is established by the Civil and Commercial Code and Consumer Protection Law No. 24240. Abusive clauses are those that distort supplier obligations, limit consumer rights or could be reasonably unpredictable. This general regime is based on broad and open guidelines. It’s complemented by Resolution No. 53/03 issued by the former Secretariat of Competition, Deregulation and Consumer Defense which contains a list of abusive clauses. And it’s currently expanded by the new Resolution we’re analyzing here.

According to the Resolution’s recitals, these new additions result from previous general regime infringements found by the administration. By expanding the list, the administration hopes to optimize the detection and removal of abusive clauses.

From our point of view, the Secretariat of Domestic Trade’s margin of action is limited since it can only oversee contracts that have yet to be formalized. Once the consumer and the supplier enter into the contract, only the courts can exercise jurisdiction. If the aim of the Resolution is to prevent abuse, we believe that a good practices guideline could better achieve that end.

Either way, suppliers are obligated to revise their terms and conditions in order to adapt them to the new regulation. This should be done by making all their contracts available on their websites (Resolution SCI No. 271/20 commented on here).

From now on, abusive clauses are those that:

• Infringe or enable the violation of child rights.
• Promote or directly or indirectly foster stereotypes, sociocultural patterns based on gender inequality, and power over women.
• Distinguish, exclude, restrict, or diminish consumers arbitrarily on the basis of their race, ethnicity, gender, sexual orientation, gender identity, age, religion, physical, psychophysical or socioeconomic conditions, nationality or any other criteria contrary to the respect for human dignity.
• Distort the effects of earnest money or down payments to the detriment of consumers.
• Establish arbitration clauses or agreements.
• Hinder, distort, or otherwise prevent consumers from withdrawing their acceptance in consumer relations established outside commercial establishments, remotely or electronically.
• Allow suppliers to keep consumer data after the contract is extinguished and the consumer has requested its erasure.
• Impose a ban or sanction on making negative reviews.
• Consider the contract formalized and accepted by simply searching the website.
• Establish compound interest or interest on interest in consumer relations to the detriment of consumers.
• Transfer the effects of acts of God or force majeure to consumers.
• Preclude or restrict the consumers’ ability to invoke unforeseeability standards or the frustration of construal purpose doctrine.
• Suppress or reduce the scope of supplier sanitation duties.
• Allow suppliers to delegate the performance of their service to a third party when the supplier was chosen by the consumer on account of their personal skills.
• Limit the exercise of consumer rights through collective actions.