Register of Prohibited Clauses
When using ready-made contract templates in relations with consumers, you should pay particular attention to whether they contain prohibited clauses - the so-called abusive clauses. These are provisions that have not been individually agreed with the consumer and additionally infringe his or her interests or describe his or her rights and obligations in a manner contrary to good morals. By law, such contracts are non-binding for the consumer. An example of a prohibited clause may be, for example, making the possibility of termination of the contract by the consumer subject to payment of a penalty, or exclusion of the company's liability for non-performance or improper performance of an obligation.
UOKiK also mentions other examples of prohibited contract terms. These include those which, among others:
- exclude or limit liability towards the consumer for personal harm.
- provide for provisions with which the consumer has not had the opportunity to acquaint himself prior to the conclusion of the contract
- allow the entrepreneur to transfer rights and obligations under the contract without the consumer's consent
- make the conclusion of a contract conditional on the consumer promising to conclude further contracts of a similar nature in the future
- make the provision of the benefit dependent only on the will of the entrepreneur
- grant entrepreneurs the right to make a binding interpretation of the agreement
- entitle the entrepreneur to unilaterally amend the contract without an important reason indicated in the contract
- exclude the obligation to reimburse the consumer for the non-performance in whole or in part if the consumer renounces the conclusion of a contract or its performance
- deprive the consumer solely of the right to terminate, withdraw from or terminate the contract
- impose an obligation on a consumer who has failed to fulfil an obligation or has withdrawn from a contract to pay an abnormally high contractual or withdrawal penalty.
- provide for a unilateral right of change for the entrepreneur only
- exclude the jurisdiction of the Polish courts or submit the case to an arbitration court of Poland or a foreign court or other authority, and impose that the case be heard by a court which, according to the Act, is not competent for it locally.
The aforementioned provisions may be the reason for an individual action brought by a consumer before a common court. They may also be considered by the Court of Competition and Consumer Protection in Warsaw. If the court finds the provision abusive, the content of the contractual provision is included in the register of prohibited clauses kept by the President of the Office of Competition and Consumer Protection.