THE SPECIFIC CONTROL OF THE CONTENT OF NON-NEGOCIATED UNFAIR TERMS

Abstract

The purpose of this paper is to make a deep study of the specific control of the content of not individually negotiated terms that cause an important harm to the consumer due to their unfair character. The core of the Spanish legislation for the protection of the consumer has been Directive 93I13ICE on unfair terms in consumer contracts, transposed to our internal legal system by the General Conditions of Contract Law, which amended the General Law for de Defense of Consumers and Users, establishing a control of content of terms deemed to be abusive, law that has subsequently been important reforms. This study examines the sources of law with regard to unfair terms, a necessary knowledge to study afterwards the concept of unfair term, which is also necessary to focus on the third and principal question that we want to study, now in depth, the requirements that a non-negotiated term has to fulfil to be considered unfair (control of content). Finally, we shall analyse the legal consequences of a term deemed to be unfair. For all these purposes, we shall take into account EU Law as well as Spanish Law and comparative Law, always having as reference the decisions of the European Court of Justice.