Abusive clause

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[edit] Definition

An abusive clause is a clause "deemed unwritten".

Regarding mediation in France, the law of January 28, 2005, which tends to bolster confidence and strengthen the protection of the consumers, has provided clarifications in Article L. 132-1 of the Consumer Code.

It is thus indicated that will be deemed as abusive, and therefore considered as unwritten, all clauses whose purpose or effect is:

"To remove or impede the exercise of legal actions or recourses of the consumer, particularly: - by requiring the consumer to choose exclusively an arbitration jurisdiction which is not covered by legal provisions; or, - by requiring the consumer to proceed only by a mode of Alternative Dispute Resolution; or, - by unjustifiably restricting the access to evidences which are supposed to be available to the consumer; or; - by imposing on the consumer a charge of evidence which, according to the law, should be held by another party of the contract".

This specification provides in fact nothing new. Indeed, the law is perfectly clear since a long time on this issue: the rights of consumers apply - of course, like all other rights - in the legal area!

However, it is not abusive to foresee recourse into mediation or Negotiation assisted by a third party before any further legal proceeding.

Moreover, it might be interesting that a contract can include a mediation clause in order to strengthen the contractual freedom of the parties. The consumer who is informed of this clause may benefit from it and spare - for himself as for the professional - the heaviness of a legal procedure. It is obvious that this step could not be exclusive and the consumer legally keeps his right of appeal to a tribunal. However, with the professional mediators, it is precisely the contractual freedom which is preserved.

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