A CURRENT REFLECTION ON CONTRACTUAL UNBALANCE AND UNFAIR CONTRACT TERMS*

Abstract

The purpose of the present study is to contribute to the reflection on how far legal developments over contractual asymmetry and consumer protection (as the consumer is usually the weakest party to the agreement) are influencing different aspects of contract structuring and agreements legal system. The current crisis period has also revealed the existence of many unfair terms on the contracts, so it would be convenient to take a look back with the aim of watching the steps already taken in order to effectively execute the consumer/ weak-party-to-the-contract protection, as well as those points that have not been accomplished yet. The present refection has as a basis some considerations take from the jurisprudence and legislative recent issues on unfair contractual terms. Amongst these last news, we must highlight recent European jurisprudence related to courts oversight over unfair clauses, and specifically the European Court of Justice Sentence dated April 14th, 2013, connected to foreclosure, as well as the Spanish Supreme Court Sentence dated May 9th, 2013, in regard to the wellknown «floor-clauses»; finally, we will also make a review on clauses setting interests in arrears, and their eventual consequences as unfair contractual terms.