In connection with the entry into force of Act No. 89/2012 Coll., the Civil Code (hereinafter referred to as the “Civil Code”), the institute of so-called contracts of adhesion has been elaborated in more detail within the Czech legal order. A contract of adhesion is any contract whose basic terms have been determined by one of the contracting parties or according to their instructions, without the weaker party having had a real opportunity to actually influence the content of these basic terms. Contracts of adhesion must also be considered to include such contracts for whose conclusion with the weaker contracting party a contract form used in business dealings or other similar means is used (hereinafter referred to as a “contract of adhesion”). This legal regulation will thus apply in full to purchase contracts concluded through an e-shop. For these reasons, we shall deal with this issue in more detail in this and the following legal circular.
The Civil Code devotes four paragraphs to the regulation of contracts of adhesion, specifically provisions § 1798 – § 1801. The first mentioned provision merely defines what contracts of adhesion are, which was already mentioned above. The following provisions regulate so-called clauses in contracts concluded by way of adhesion.
Pursuant to the provision of § 1799 of the Civil Code, a clause in a contract concluded by way of adhesion which refers to terms stated outside the actual text of the contract is valid if the weaker party has been familiarised with the clause and its meaning, or if it is proved that it must have known the meaning of the clause. This provision does not concern external clauses (clauses to which reference is made – typically contractual terms), but rather so-called incorporation clauses (i.e. the clause which refers). Therefore, it is necessary to draw the buyer’s attention sufficiently clearly to the fact that, for example, terms and conditions are part of the contract – in such a way that the effect (content) of this notice is comprehensible.
Most internet shops use terms and conditions to which they refer when concluding a contract regarding the purchase of goods, whether by ticking the box “I agree to the contractual terms and conditions” when purchasing, or by notification when concluding the contract that the contract is governed by the terms and conditions, with an indication of where these terms are available. As already outlined in legal circular No. 1/2013 according to the judgment of the Court of Justice of the EU in the case Content Services Ltd v. Bundesarbeitskammer (C-49/11), the second variant (merely a reference to terms located on a website) may not be acceptable from a legal point of view.
In order to prevent future disputes, it is therefore possible to recommend that this clause (text), on the basis of which the terms and conditions are to become part of the contractual relations between the trader and the consumer, should be written clearly and comprehensibly. That is, so that there is no doubt about its meaning. It is thus possible to avoid not only potential disputes with consumers, but also potential subsequent proceedings with the Czech Trade Inspection Authority.
We shall further address how questions of illegible, incomprehensible or so-called particularly disadvantageous provisions (in contracts of adhesion) are legislatively resolved in the new Civil Code. This primarily concerns the regulation contained in the provision of § 1800 of the Civil Code.
As regards the illegibility of contractual clauses, the most common variant is a clause stated in excessively small print, written in a special illegible font, or in lettering in a colour merging with the background colour. The illegibility of print was specifically addressed in a decision of the Constitutional Court. Within the decision of the Constitutional Court I. ÚS 3512/11 of 11 November 2013, it was stated that “contractual provisions must have a sufficient font size, they must not be in a significantly smaller size than the surrounding text.”
An incomprehensible clause must then be considered to be such a clause which is incomprehensible to a person of average intelligence. It is therefore a question of whether the weaker party, even if it recognised individual words, could ascertain without particular difficulty what these words mean in their entirety, i.e. how they establish, alter or extinguish its rights and obligations. This is understandably a very complex requirement for practice, since generally binding legal regulations impose on traders, on the other hand, also a large number of information obligations, whereby to fulfil them it is thus necessary to present extensive texts to the consumer (the comprehension of which may not be simple).
The last prohibited clauses in contracts of adhesion are clauses which are particularly disadvantageous to the weaker party without there being a reasonable ground for this. However, this disadvantageousness does not relate to the subject matter of performance or its price if they are agreed clearly and comprehensibly (and if they are not clearly and comprehensibly regulated, other provisions of the Civil Code shall be applied). According to professional literature, a particularly disadvantageous clause is assessed according to three criteria:
Balance of performance – a clause which grants the stronger contracting party performance which will be in manifest disproportion to the performance of the other party will be invalid. As we have already stated, this provision does not relate to the subject matter of performance and its price. However, even in this case, it will not be a balanced performance if the stronger party will be able to extricate itself from performance without reasonable ground, or if a situation arises where the weaker party provides consideration without obtaining performance.
Proportionality – particularly in the case of provisions which may sanction or restrict the weaker party, it is necessary to assess whether this sanction or restriction is not manifestly disproportionate. This will be the case, for example, if the weaker party is obliged to take services for a disproportionately long period.
Reciprocity – if the stronger party to the contract has a certain power (sanctioning or modifying, for example to withdraw from the contract), regard shall also be had to whether the contract grants a similar power to the weaker party. This criterion is auxiliary, since even if a certain power is granted to only one contracting party, this in itself does not mean that it is a particularly disadvantageous clause.
Even if, according to these criteria, the clause will be particularly disadvantageous, it may be permissible if there is a reasonable ground for this. Reasonable grounds will often lie in economic considerations, for example, that without a certain clause the stronger party could not provide the service profitably, etc. A reasonable ground may also lie in the fact that the clause appropriately and reasonably prevents such abuse of the service which could lead to its substantial increase in price for honest customers.
If a clause particularly disadvantageous to the weaker party is used in the contract, it is relatively invalid. This means that its invalidity occurs only if the weaker party invokes it.
In conclusion, we recall that the above regulation applies to relations between a trader and a consumer (and not between traders inter se, etc.).
Kamil Žylka
Law Firm Mašek, Kočí, Aujezdský www.e-Advokacie.cz – on-line legal advice
This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the Association for Electronic Commerce (APEK) as legal circular No. 4/2016 and No. 5/2016 intended for members of this association.
This text was translated from Czech to English using an AI translator.