Within the new Civil Code (Act No. 89/2012 Coll.) are also included provisions implementing Council Directive 93/13/EEC on unfair terms in consumer contracts. The Czech implementation of this Directive has undergone certain modifications in the Civil Code, and in this legal circular we shall briefly introduce this issue.

The general regulation of so-called unfair terms is newly contained in Section 1813 of the Civil Code. Here it is specifically provided that “…prohibited are terms which, in breach of the requirement of fairness, establish a significant imbalance in the rights or obligations of the parties to the detriment of the consumer. This does not apply to terms concerning the subject matter of performance or price, if they are provided to the consumer in a clear and comprehensible manner.” From this it follows that the amount of the price of goods or services in itself does not establish a significant imbalance in the rights or obligations of the parties to the detriment of the consumer, provided that this price was provided to the consumer in advance in a clear and comprehensible manner (thus even in the event that the agreed price is manifestly “disadvantageous” to the consumer).

However, Section 1793(1) of the Civil Code concerning laesio enormis (neúměrné zkrácení) could apply to these situations (where a manifestly disadvantageous price was agreed): “If the parties undertake mutual performance and the performance of one of the parties is in gross disproportion to what the other party has provided, the prejudiced party may demand cancellation of the contract and restoration of everything to its original state, unless the other party supplements that by which it was prejudiced, having regard to the price usual at the time and place of conclusion of the contract. This does not apply if the disproportion of mutual performances is based on a fact of which the other party did not know nor was required to know.” Argumentation under Section 1793(1) of the Civil Code, conversely, cannot be used by a trader against a consumer (if the agreed price was manifestly disproportionate to the detriment of the trader), having regard to the wording of Section 1797 of the Civil Code.

The general regulation of so-called unfair terms is supplemented by Section 1815 of the Civil Code, which provides that “an unfair term shall not be taken into account, unless the consumer invokes it.” This means that if, in exceptional cases, a consumer could derive some advantage for himself from unfair terms, he may invoke the existence of such terms against the trader.

Examples of terms which are always considered unfair are contained in Section 1814 of the Civil Code. Some of these unfair terms which, in our opinion, are most important for practice are mentioned below. In particular, prohibited are terms:

• which exclude or limit the consumer’s rights arising from defective performance or to compensation for harm (Section 1814(a)),
• which establish the trader’s right to withdraw from the contract without reason, whilst not giving this right to the consumer (Section 1814(d)),
• which allow the trader, at his discretion, to alter the rights or obligations of the parties (Section 1814(g)),
• which defer determination of the price until the time of performance (Section 1814(h)).

Regarding the provisions of Council Directive 93/13/EEC on unfair terms in consumer contracts, there already exists relatively extensive case-law of the Court of Justice of the EU (formerly the European Court of Justice), which we may possibly address in one of future legal circulars.

Josef Aujezdský

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. 7/2014 intended for members of this association.

This text was translated from Czech to English using an AI translator.