If you enjoy exploring the field of finance, I invite you to learn more about this interesting topic: What is the registration of general terms and conditions of contracts ? Types and examples.
Registration of general contracting conditions
The Registry of General Contracting Conditions; It is a record of legal importance in private traffic, whose purpose is the publicity of the general conditions of the contract, as well as the registry and judicial resolutions that affect its effectiveness.
The General Terms and Conditions of Contracting constitute the essence of this type of contract; the inequality in the drafting of the contract lies in the fact that only one of the parties has all the power to determine the content of the contract and the way of formalizing it, that is, through adhesion, since one party adheres to the conditions pre-established by the other party.
Features
The characteristics of the general conditions of the contract are the following:
be predisposed
This characteristic establishes that the conditions are imposed by one of the parties to the other. In this case, the other can only accept or reject the established conditions. In this case, the parties function as the one that stipulates the contractual regulations (predisposing) to the other (acceptor or adherent), whose contractual freedom is limited to the acceptance, or eventual rejection, of the same.
This type of contracts are specifically examples through the contracting of services such as telephone, light, water, electricity or bank contracting. They are stipulations established in contracts, which, having the same content, are drawn up by service providers.
Drafting of the clauses
The wording of these clauses must have the purpose of being incorporated into a variety of contracts. In this sense, the wording of the general clauses must be designed in such a way that they are simple, transparent, concrete, and clear.
Requirements that the clauses must meet
- The clauses must be materially legible and perceptible, in the size of the typographical characters as the presentation allows, that they can be physically perceived and read.
- The clauses must be understandable. The language must avoid the unnecessary use of terms or expressions of a technical nature.
- The requirement of clarity in the wording refers both to the presentation of all contracts and in relation to the language and language used.
- The requirement of specification is linked to the complete description and delimitation of the element or aspect of the contractual content.
Once you've identified this article, I invite you to learn more about this interesting topic: Contract Modality
Types of contracts excluded
The contracts that are excluded from the application of the rule on contracting conditions can be mentioned the following:
- The administrative contract.
- The employment contract.
- The Company Incorporation Agreement.
- The Contract that regulates family relations.
- The succession contract.
Requirements for joining a consumer contract
To be able to join a consumer contract there are some requirements that we must record. It is decisive, to apply the regulations on General Conditions, that the contract is concluded between a professional (predisposing) and a consumer or user (adherent).
In written contracts, the following will be essential requirements for the incorporation of General Conditions to the contract:
The acceptance of the adherent - The signature of all the contracting parties
The express Relationship to the General Conditions incorporated.
- There will be no acceptance of a contract when the predisposing party is not in agreement or is expressly aware of the adherent of the same, and has not provided a written copy.
- In the event that the contract is not formalized in writing, the consumer is given, by the entrepreneur, a receipt or assurance of the consideration received, the latter will inform the user through one of the following ways:
- Notifying by any means, the general conditions in a visible place, within the place where the business is held.
- Any form that guarantees the consumer an effective alternative to know its existence and content at the time of the celebration.
In cases of telephone or electronic contracting, prior to the conclusion of the contract, the service provider must provide the consumer in a mandatory, truthful, effective and complete manner, the clauses of the contract, and send him by any means, the text or complete content of the general contracting conditions that are included in the contract.
It is necessary and essential that the general clauses meet the criteria of transparency, clarity, specificity and simplicity.
Interpretation of a contract with general conditions
Once the contract has been reviewed, a contradiction between the general conditions and the particular ones will be observed, the particular ones will prevail over the general ones, except if the latter have more benefits for the adherent.
Limits for the incorporation of general conditions
- The following general conditions will not be able to be incorporated:
- That the adherent, has not had the opportunity to fully know, at the time of the execution of the contract.
- The clauses that are illegible, ambiguous and incomprehensible, will be null and void.
- The general conditions that are opposed to the detriment of the consumer and the provisions of the law, or in any other mandatory or prohibitive regulation in force.
- The general conditions considered abusive. They are all those non-negotiated and arbitrary stipulations that cause damage or harm to the consumer against good faith, causing a vulnerability of the rights and duties of the parties in favor of the service provider.
To know what clauses can be abusive we leave you this video that clarifies this panorama
Examples of abusive clauses
- Those that impose on adherents, limitations on rights that correspond to them as consumers.
- Those that impose onerous or disproportionate obstacles, in the exercise of the rights recognized to the consumer.
